
    Augusta C. Genet, App’lt, v. The President, etc., of the Delaware & Hudson Canal Co., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 11, 1891.)
    
    Beferee—Appointment of new, on ordering new trial.
    The court being of opinion that the new trial should be heard before another referee, judgment ordered resettled and amended by directing the trial to be before a new referee, to be appointed by the court.
    Appeal from an order denying motion for the appointment of a new referee to hear and determine this action. See 35 IT. Y. State Bep., 552.
    
      G. 0. Genet, for app’lt; F. F. Smith, for resp’t
   Per Curiam.

It was the opinion of the court who heard the appeal in this action that the new trial should be before another referee than the one who had passed upon the issues involved in the action, and in order that there may be no doubt as to the power of the court to appoint a new referee, the order entered upon the reversal of the judgment should be resettled and amended by directing that the new trial be had before a new referee, to be appointed by the court.

Under these circumstances, the appeal taken from the order of the special term should be dismissed, without costs, and the order resettled in the manner suggested.

Yan Brunt, P. J., Daniels and O’Brien, JJ., concur.  