
    THE EXCELSIOR PETROLEUM COMPANY, Appellant, v. MAGGIE B. LACEY, Executrix, and others, Executors, etc., of Frederick Lacey, Deceased, and others, Respondents.
    
      Beferee—duty of on settlement of case—findings—when compelledto make—Bule41.
    
    Upon the settlement of a case by the referee before whom it had been tried, the plaintiff prepared a number of findings in addition to those contained in the referee’s report, upon all of which the referee passed, allowing some and declining to allow the others. Subsequently the plaintiff moved for an order requiring the referee to find for or against all of the findings requested by him on the settlement. Held, that the motion was properly denied. That as the referee had allowed or declined to allow all of the proposed findings, he had done all that he was bound to do.
    An express refusal by a referee to find as requested, must be deemed a ruling to the effect that the evidence would not justify such finding, or that, if found, the fact would not be material to the issue.
    The proper practice to be pursued upon the settlement of a case by a referee, stated.
    Appeal from an order of the Special Term, denying a motion to send back a case to a referee for further findings.
    
      Wm. H. Dickinson, for the appellant.
    
      Man <& Pa/rsons, for Lacey’s executors.
    
      George P. Andrews, Benj. T. Kissam and George 0. Blanke, for other respondents.
   Davis, P. J.:

This case was tried before a referee, who reported in favor of the defendants. The plaintiff made a case with exceptions, and on the settlement of the same, proposed to the referee a large number of findings, in addition to those contained in his report. The referee passed upon all of the proposed findings, allowing several of them, and declining to allow the others. At the foot of each of the requests which the referee did not find as requested, the case states that, “ The referee declined so to find, and to such declination appellant duly excepted.” The plaintiff thereupon moved at Special Term for an order that the referee be required to find for or against all of the findings requested by plaintiff on the settlement of the case, which motion was denied, as it is stated in the order, on the ground that it appeared to the court that the referee has allowed or declined the various proposed findings, and that, therefore, there is nothing to send back to him, he having done all that he was bound to do.”

We are of opinion that the order of the Special Term is correct. By Rule 41 of this court, it is provided that upon the settlement of the case, the referee shall correct and settle the case according to the facts, and shall at that time find on such other questions of fact as may he required hy either party and he material to the issue” The words above italicized are amendments of the old rule made by the convention of judges in December, 1870, and they were doubtless inserted to change the practice as to the time when additional findings should be asked for; it having been decided in Lefler v. Field, that the request for additional findings must be made before the settlement of the case.

I have no doubt that the words, find on,” were used in such amendment in the sense of pass upon; ” and it may be added, that the late convention of judges to revise the rules, have sustituted the word, “pass,” for the word, “find,” in the rules to take effect on the first of February next.

The following is the practice laid down, as I think correctly, in Wait’s Practice: Should the referee refuse to pass upon the questions of fact submitted to him for that purpose, and to find affirmatively or negatively, the party should, as a precautionary measure, take an exception to such refusal, although such exception may not be strictly necessary or available to raise the question for review. (See Grant v. Morse, 22 N. Y., 323; Manley v. Insurance Company of North America, 1 Lans., 20; Priest v. Price, 3 Keyes, 222; Lefler v. Field, 47 N. Y., 407; Ashley v. Marshall, 29 id., 494; Brooks v. Van Every, 3 Keyes, 27.)”

“ The party should thereupon move the court at Special Term, before the argument of the appeal from the judgment, for an order directing the referee, in settling the case, to insert such part of the proposed matter as related to the points or claims alleged to have been actually made on the trial before him, and to send the case back to him for further findings, if it should be made to appear that they were necessary to a proper review of the judgment. (Lefler v. Field, 47 N. Y., 407; Van Slyke v. Hyatt, 46 id., 259; Brainard v. Dunning, 30 id., 211, etc.)

“Upon the application for the order, the materiality of the desired findings should be shown to the court. Should the application be denied, the proceedings to obtain further findings can be inserted in the record, and upon an appeal from tire judgment the materiality of the findings asked for and refused can be determined at the General Term, and in the Court of Appeals on a review of the whole case. ( Van Slyke v. Hyatt, 46 N. Y., 259.)”

Under Rule 41, the referee is to find on such other facts, etc., as “may be material to the issue.” Whether the findings are material to the issue or not, is a question to be determined primarily by the referee; and where he expressly declines to find as requested, that must be deemed a ruling to the effect that the evidence would not justify such finding, or that if found, the fact would not be material to the issue. It is to be presumed, where requests for additional findings are made, the party has been careful to insert all the evidence on which he bases the request, and thus to be able to bring to the attention of the court, on review, both the correctness and the materiality of the request. The appellant asserts that the evidence is in the case upon which the referee should have found in accordance with his requests. If that be so, we think he is in a position to review, in this court, every question, both of law and fact, ' that can properly be raised, both as to the effect of the findings made, and the propriety of the refusals to find.

The order appealed from should be affirmed, but, under the circumstances, without costs.

Daniels and Lawrence, JJ., concurred.

Order affirmed, without costs. 
      
       50 Barb., 407.
     
      
       Vol. 3, p. 337.
     