
    Felix Herzfeld and Ned Strouse, Appellants, v. Max Reinach, Respondent.
    
      Evidence—objection not passed upon by a referee—considered to have been'overruled and an exception to have been taken —part of answer read in evidence — effect of its subsequent amendment.
    
    When objections aiie made upon a reference to the reception of evidence, and ito the granting of motions to strike out evidence which has been received without objection, it will, upon appeal, be considered that the objections were over-' ruled and that exceptions were taken, where the referee fails to pass upon. such objections at the time they were made, or before the end of the reference, or to indicate in his report what disposition he has made of them.
    The amendment of an answer, after a portion thereof has been put in evidence, does not render such portion incompetent as evidence.
    Appeal by the plaintiffs, Felix Herzfeld and another, from a judgment of the Supreme Court-in favor of the defendant, entered in the office of the clerk of the county of New York on the 8th day of March, 1899, upon the report of a referee dismissing the complaint upon the merits.
    B. Lewinson, for the appellants.
    
      Edward W. S. Johnston, for the respondent.
   McLaughlin, J. :

This action was brought to recover a balance alleged to be due the plaintiffs, as surviving members of the firm of Herzfeld & Co., in making purchases and sales of stock for the defendant. The answer is substantially a general denial of the cause of action alleged in the complaint, and it also contains a counterclaim for alleged disobedience of the defendant’s orders in making the purchases and sales. The issues involved were sent to a referee to hear and determine, who after trial dismissed the complaint upon the merits, with costs, and the plaintiffs have appealed. During the progress of the trial numerous objections were made by the defendant to the admission of testimony, and the. plaintiffs objected to the granting of certain motions made by the defendant to strike out evidence which had theretofore been received without objections. After both parties had rested, plaintiffs moved to dismiss so much of the defendant’s answer as alleged a counterclaim upon the ground that no proof had been adduced to sustain it. The referee did not rule upon these objections or motions at the time they were made nor at any time during the trial, and his report fails to show that he ever passed upon them in any way. The evidence, concerning which the objections and motions were made, had a very material bearing upon the issues involved, and the failure of the referee to pass upon them before the close of the trial or to indicate in his report the disposition which he had made of them constitutes an error which requires a reversal of the judgment.

The method adopted by the referee in reserving his decision upon objections and motions made by the- respective parties during the progress of the; trial, and then not disposing of such objections before the final submission of the case so that the party ruled ágainst may have his exception to the ruling noted, if he so desires, cannot be sanctioned by this court. It is not the proper way to conduct a trial, and the courts have heretofore, when the matter has come before them, disapproved of such practice. (Sharpe v. Freeman, 45 N. Y. 802; Lathrop v. Bramhall, 64 id. 365.) A litigant is-entitled to have ¡a trial so conducted that a record can be presented to the appellate court, if desired, for review, which will show upon what evidence the decision is based. This cannot be done when a trial is conducted in the- manner in which this one was. We think it must be held, .when objections are made during the progress of the trial to the reception of evidence dr motions are made to. strike out the same after it has been received, and the referee omits to rule upon such objections or motions at the time they were made or before the close of the trial, that then such objections and motions must be considered upon review the' same as if they had been decided in favor of the successful party and- an exception duly taken-, thereto, unless tike successful party can show that the omission to make the rulings did not and could not by any possibility have injured the defeated party. (Lathrop v. Bramhall, supra.) If. such rule be adopted, then it at once becomes apparent that this judgment must be reversed. On. .the trial, the plaintiffs offered in evidence a portion of defendant’s answer which contained an admission of the purchases and sales of stocks referred to in the complaint. The answer was thereafter amended and a motion made by the defendant to strike otit the .original answer as evidelicet on the ground that it, having been amended, was no longer competent evidence against the defendant. The amendment did not destroy the original answer when it was sought to be used as evidence and not as a pleading. The referee erred if he granted the motion, and if he did not grant it, but considered the admission contained in the answer, it is difficult to see how he could have dismissed the ' complaint.

Many other grounds of error are assigned, but, in view of the conclusion at which we have arrived, it is unnecessary to consider them.

The judgment must be reversed and a new trial ordered before another referee, with costs to the appellants to abide the event.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment reversed, new trial ordered before another referee, costs to appellants to abide event.  