
    APOLLONIE MUNDORFF, Respondent, v. JACOB MUNDORFF, as Administrator of John Mundorff, Deceased, and others, Appellants.
    
      Interlocutory decree—ref&ree—powers of— Code, § 268— motion for new trial.
    
    The practice which formerly prevailed in the Court of Chancery, of determining the rights of parties to suits in equity, in the first instance, upon the hearing by an interlocutory decree, and then, when necessary, referring the case to a master, to take and state the account, still continues in force.
    Ordinarily, where the whole issue is referred, it is the duty of the referee to take, state and adjust the accounts of the parties on the basis on which, by his decision, he may settle their rights.
    But where, for any reason, this is not done, and an interlocutory report only is made, by which the rights of the parties are determined, and a further hearing is directed to settle the accounts between them, the court has power to direct tha to be done before another referee.
    His report, made in this manner, sustains all the relations to the case the former interlocutory decree did, in hearings had in the Court of Chancery.
    Such decree may now be reviewed at General Term, by a motion for a new trial.
    Appeal from an order made at Special Term.
    This action was brought by the plaintiff, the widow of John Mundorff, deceased, to set aside a receipt given by her to the defendant, Jacob Mundorff, as administrator, so far as it operated as a release of her claims against the estate, on the ground of fraud; for an accounting of the estate; and for the enforcement of an ante-nuptial contract entered into by the plaintiff and the deceased.
    By an order, dated October 13th, 1871, the case was, by consent, referred to a referee, “ to hear and decide all the issues in the action, and to take any account that he may determine should be taken.”
    He made and filed his report, March, 1873, deciding the equitable rights of the parties, and then directed that an accounting should be had of the administration of the estate of John Mundorff, deceased, declining to proceed with it himself.
    On the motion of plaintiff’s attorney, an order was made at Special Term, on the 5th of April, 1873, referring the case to another referee, to take and state an account of the estate. From this order the defendants appealed.
    
      F. G. McDonald, for the appellant.
    
      Elidí F. Mall, foi*the respondent.
   Daniels, J.:

Before the adoption of the present system of practice, the rights of parties to suits in equity, were, in the first instance, determined upon the hearing. And upon that determination, where a complete disposition of the case required accounts to be settled, an interlocutory decree was entered, declaring such rights, the manner in which the accounting was to be had, and referring the case to a master, before whom it should be taken. This practice would be continued in force, even if no positive provision to' that effect had been made, as long as it cannot be held inconsistent with the changes made by the Code. The convenience of legal proceedings, requires its existence. Without it, the court, in cases of an equitable nature, would not only be bound to hear the case upon its entire merits, but, after disposing of them, to go on and take the formal accounting required for final judgment. This would not only prove to. be an intolerable burden, but it would so far embar rass the trials before the court as to be the cause of vexatious delays. For it would be impossible for courts to hear all the cases of this class, brought before the Special Term, and, in addition to that, take and state the accounts upon the basis of the conclusions arrived at, as to the merits of the controversies.

Not only does the Oode not require that this course should be pursued, but it provides, in substance, for the continuation of the previous practice upon this subject. This is done by providing for a review of the decision of the court, by a. motion for a new trial before the General Term, where the decision filed shall not authorize a final judgment, but directs further proceedings before a referee or otherwise. In terms, this provision relates to trials had before the court, without a jury. But, by section 272, it is properly applicable to the trial of the same class of cases before referees. For, by that, it is provided that the trial shall be conducted in the same manner before a referee as if it were had before the court, without a jury. Ordinarily, where the whole issue is referred, it is no doubt the duty of the referee to take, state and adjust the accounts of the parties on the basis on which, by his decision, he may settle their rights; for, as a portion of the issues, that is included within the reference provided for. But if that is, for any reason, not done, and an interlocutory rep'ort only is made, by which the rights of the parties are determined, and directing a further hearing to settle the accounts between them, there can be no reason for doubting the power of the court to direct that to be done before another referee. It would, in all such cases, be wiser to send the case back to the same referee, on account of the familiarity he must have acquired with the facts rendering the accounting necessary, and the principles which, according to his conclusions, should govern it. But that does not affect the question of the power of the court. ■ It relates simply to the manner in which, under the circumstances, it should be exercised.

The report made in that manner, sustains all the relations to the case the former interlocutory decree did, in hearings had in the Court of Chancery. And all that can be required; is, that the details of the litigation shall be completed according to its conclusions as to the rights of the parties. This can be done by a reference to a new referee, though not as easily as by continuing the case before the one first appointed. Cases must sometimes occur where no other course can be pursued—where, for instance, other acts must be performed intermediate the interlocutory decision and the taking of the accounting; or where, after the interlocutory report, the referee himself may leave the State, become insane or depart this life before the accounts can be settled in conformity to his decision. In either contingency, it would be very unjust to the parties, to hold that the case must be entirely retried again, and no necessity exists for any such ruling.

In this case, the referee reported as to the equitable rights of the parties, and then directed that an accounting should be had of the administration of the estate of John Mundorff, declining to proceed with it himself. It was the right of the parties, as well as the duty of the court, to have the case completed in this respect. And that could be done by ordering the same referee to proceed upon the basis of his report, to that end, or by committing the execution of the direction to any other competent person. The latter course was adopted. It was entirely within the discretion possessed over the case by the court, and is sustained by the decision of the General Term of the Superior Court, in the ease of Trufant v. Merrill. The order should be affirmed, with costs.

Davis, P. J., and Donohue, J., concurred.

Order affirmed, with costs. 
      
       1 Barb. Ch. Pr., 327.
     
      
       469 of Code.
     
      
      
         Code, § 268.
     
      
       37 How., 531.
     