
    Charles Devlin, Respondent, against The Mayor, Aldermen and Commonalty of The City of New York, Appellants, and Samuel Donaldson et al., Respondents.
    (Decided December 6th, 1880.)
    Where a cause has been referred, upon motion, on the ground that it is referable in its nature, the death of the referee pending the hearing before him does not terminate the reference, as in case of a reference by consent of parties, and a new motion for a reference is not necessary. The proper course is to apply for the appointment of a new referee.
    Upon affirming, on appeal, an order appointing a referee, the general term will not, on the application of the appellant, direct that the reference be to three referees instead of one ; the application should be made at special term, and upon notice to the opposite party.
    Appeal from an order of this court appointing a referee in place of a deceased referee.
    The previous proceedings in the action, so far as material, are stated ante, p. 331. The order there mentioned appointing Homer A. Nelson, Esq., referee in place of William Bloomfield, deceased, having been reversed, as irregularly made, pending a stay at the time, the plaintiff moved at special term for the appointment of a new referee in place of the deceased referee; and his motion was opposed by the defendants, the Mayor, &c., on the .ground that no such appointment could be made, and that the motion should have been for a new order.of reference. The motion was granted, and an order entered appointing Abram Wakeman, Esq., referee, in the place and stead of William Bloomfield, deceased. From this order the defendants, the Mayor, &c., appealed.
    
      William O. Bartlett, for the appellants.
    By the death of the referee before the cause was decided, the original order of reference was vacated (Hoffman Referees, 76; Emmet v. Bowers, 23 How. Pr. 300; Caldwell Arbitr. 96; Morse Arbitr. & 
      Aw. 234,235; Harper v. Abrahams, 4 Moore, 3; Magown v. Sinclair, 5 Daly, 67-70).
    It the court concludes that the order of reference should he sustained, the number of referees ought to be increased to three (Bell v. The Mayor, Supr. Ct., April, 1877, MS.).
    
      R. W. Newcombe and A. Cardozo, for plaintiff, respondent, and T. C. Cronin, for defendant Donaldson and others, respondents.
    The order of reference having been affirmed by the general term, the order of substitution of the referee Wakeman in the place and stead of the deceased referee, Bloomfield, was the only order proper for the special term to make. All the cases cited by the appellant are cases of arbitration, where the arbitrators were selected by consent, or of orders of reference where the appointment of the referee was made by consent in cases not referable.
   Charles P. Daly, Chief Justice.

a cause is re-

Where ferred by consent of parties, and the referee dies, it puts an end to the reference, because the extent of the consent is that the cause may be tried and decided by the particular person whom they have agreed upon as a referee. But where the cause is referable in its nature, and has been referred by the court, upon motion, the only effect that the death of the referee before the termination of the reference has, is that nothing has been accomplished, and that a new referee must be appointed, before whom the trial of the cause has to be begun again.

A motion was made in this cause, that it be referred. The motion was resisted by the defendants upon the ground that it was not a referable case, but involved questions that ought to be tried by a jury. The judge, at special term, held otherwise, and appointed a referee. The defendants appealed to the general term, where the order was affirmed, upon the ground that the action was referable; and we are informed that the court of appeals have recently affirmed the decision of the general term, so that it is settled beyond any further question, that the cause is referable, and that the plaintiff is entitled to have it referred as a matter of right. The fact of the death of the referee can in no way affect this decision, which is the law of this case, as settled by the court of final resort.- The case has to be tried, and the plaintiff is entitled to have it tried by a referee, involving, as it does, a great number of items ; the evidence on the former trial, relating to which, filled several printed volumes. To require, because the referee is dead, that a motion for a reference must again be made, would be to require an idle ceremony, as the same decision would have to be made again that was made before. The proper course, therefore, was the one pursued, to apply to the court, for the appointment of a new referee; and the order made by the judge at the special term was a proper one, and should be affirmed.

It is asked, that, if we should come to this conclusion, we should direct that the number of referees should be increased to three. But the defendants are here in error. If they wanted three referees, they should have made the application to the judge at the special term, that they do' now upon this appeal; and, for all that we know, the judge might have granted their request. In my opinion, from what I know of this case, in view of the questions that have to be passed upon, and the large amount involved, the application, on the part of the city, that it should be tried by three referees, instead of one, is á reasonable application. But that is a matter upon which the plaintiff has a right to be heard'; It should have been applied for on the motion below; and if it is to be allowed now, it only can be by motion, upon which the plaintiff may have an opportunity to be heard. It is in the power of the court to grant it, notwithstanding the order already made, upon facts brought before the court, showing its necessity or propriety, and of which the plaintiff has notice, by a regular motion, upon which he has the opportunity if he wishes to read affidavits in opposition. It is not a matter to be granted by an appellate court. All that we can do, is to affirm or reverse, in whole or in part, an order appealed from.

The order below should be affirmed.

J. F. Daly, J., concurred.

Order affirmed.  