
    W. Gould, Banks and S. Gould against Ogden.
    UTICA,
    Aug. 1826.
    Where a Swarlses before referees, brought before the supreme court, and decided; der^a^pecfol entry on the record, so as to present the tothecourt'of errors.
    Assumpsit for goods sold, &c. with the other common eounts- Plea, non-assumpsit, with other pleas, and a notice of set off.
    The cause was referred on the defendant’s motion; and the question before the referees was, whether certain pay-5 r J ments made by the defendant to, and receipted by S. Gould, should be applied to the demand in favor of the plaintiffs, The referees allowed the payment; and reported only , 1 v x $3,70 m favor of the plaintiffs. The report was signed ^ov. 20th, 1823; and being filed, notice was given of a motion to set it aside on the merits, at February term, 1824. In February term, 1825, the motion was denied. The defendant, on the 29th of April last, gave notice of taxing his costs.
    The motion to set aside the report Was founded on the sole, affidavit of the counsel for the plaintiffs ; and.
    
      
      J. Hoyt
    
    now moved that the defendant be required to incorporate that affidavit in his judgment record; so as to enable the plaintiffs to bring error upon the decision of the referees; and cited Reid v. The Rensselaer Glass Factory, (3 Cowen, 387.)
    
      J. Platt, contra.
   Curia.

Take a similar rule to the one granted in Reid v. The Rensselaer Glass Factory, (3 Cowen, 389.)

Rule accordingly. 
      
       Vid. S. C. on error, 5 Cowen, 587; where the practice adopted hf the supreme court was sanctioned.
     