
    EPHRAIM T. KELLOGG, Administrator, Appellant, v. LOREN WERNER, Executor, Respondent.
    
      Statutory reference — filing evidence — Rule 43.
    On a statutory reference between an executor and a claimant against tbe estate, it is not necessary to file tbe testimony taken before tbe referee.
    Appeal from an order made at Speeial Term, denying a motion made by the plaintiff for the confirmation of a referee’s report. The report was made on a statutory reference under the provisions of 2 Revised Statutes, page 89, sections 36 and 37. The confirmation was objected to, on the ground that the testimony should have been signed and filed under the provisions of the third paragraph of rule 39.
    
      Hale,- Smith c& Hale, for the appellant.
    
      R. I. Hand, for the respondent.
   Per Ouriam:

We are of opinion that, in the ease of a statutory reference, had between an executor or administrator and a claimant against the estate (under 2 R. S., [m. p.] 89, § 36, etc.), the rule of this court requiring the filing of the testimony taken before the referee (rule 43), does not apply. For this reason the order of the Special Term should be reversed, with ten dollars costs, and printing disbursements, without prejudice to any right of review of the referee’s report.

Present — Learned, P. J., Bocees and Boardman, JJ.

Order reversed, with ten dollars costs and printing.  