
    Artemas H. Holmes et al., App’lts, v. George S. Evans et al., Resp’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed March 2, 1891.)
    
    Refebexce—Opening—Code Civ. Pbo., § 734.
    • The court has no power under § 724 of the Code to vacate a report of a referee and direct the taking of new testimony by him. That section has no application to motions for new trial on the ground of newly discovered evidence, but is confined to cases of mistake, inadvertence, surprise or neglect.
    Appeal from an order denying a motion made by the plaintiffs to open and vacate the report and findings of the referee herein, and to take the testimony of another witness; and to direct the referee to proceed herein as if his said report had not been delivered.
    
      William B. Hornblower, for app’lts; Theodore C. Tomlinson, for resp’ts.
   Truax, J.

It was contended on the argument that the court had power under § 724 of the Code of Civil Procedure to grant the relief asked for. That section provides that the court may in its discretion * * * relieve a party from a judgment, prder or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.

The judge at special term said on denying the motion that the only way in which the relief plaintiffs desire can properly be sought is by a motion for a new trial upon the ground of newly discovered evidence, and that to hold otherwise would be to aid "in the establishment of a vicious precedent, and one contrary to settled rules, and that there can be no relief accorded under § 724 as there has been no mistake, inadvertence, surprise or neglect within the meaning of the terms as used in that section.

We are of the opinion that the learned judge did not err in making the order from which the appeal is taken. Section 724 has no application to motions for new trial on the ground of newly discovered evidence. First National Bank v. Heaton, 6 Thompson & Cook, 38.

The wording of the section is plain enough. It authorizes the court to relieve a party from his mistake, etc. Here there was no mistake, no inadvertence, no surprise, no excusable neglect.

Perhaps a motion for a new trial on the ground of newly discovered evidence would lie; but such is not this motion. In such a motion a case should be made and presented to the court. Thayer Manufacturing Company v. Steinau, 58 How., 315.

The order appealed from is affirmed, with costs.

Sedgwick, Oh. J., concurs.  