
    CHARLES OFFINGER, et al., Plaintiffs and Respondents, v. DAVID R. DE WOLF, Impleaded, &c., Defendant and Appellant.
    
      Decided, January 7, 1878.
    PARTITION.
    PBACTICE IN CASES OB, INCLUDING INTEELOCUTOBY PBOOEEDINGS AND FINAL JUDGMENT.
    The decision of the general term in this case substantially approves of all the proceedings in the action in detail, to and including final judgment; and therefore, reference is made to the statement of the case, and the opinion of the court,, for the numerous points involved therein.
    Before Curtis, Ch. J., Van Vorst and Sanford, JJ.
    Appeal from an order of Freedman, J., denying, with costs, a motion to vacate a judgment for irregularity.
    The plaintiffs are children of the late Johanna Christian Offinger, who, upon his death, left them, by will, certain real estate in the cities of ¡New York and Hoboken, subject, however, to the life estate of their mother, his widow.
    She afterwards died intestate.
    At the request of the plaintiffs, defendant, De Wolf, thereupon took out letters of administration, upon the estate of the late Mrs. Offinger.
    Plaintiffs, at about the same time, conveyed to Mr. De Wolf, by quit-claim deed, all the real estate devised to them by their deceased father, and received in return a declaration of trust, wherein it was stated that the real estate so conveyed, was to be held by the said defendant, not as his own, but for the objects, trusts and purposes mentioned.
    
      Mr. De Wolf accordingly proceeded to act as such administrator and trustee.
    On April 27, 1875, plaintiffs began this action against De Wolf, Wenzel Hruza (husband of a deceased daughter of the late Johanna Christian Offinger), and John, Fredericka, and Maria Hruza (infant children of the said Wenzel Hruza), setting up the interests of the' several parties to the action in the real estate above-mentioned ; also the execution of the quit-claim deed and declaration of trust.
    It was further alleged, that there were certain irregularities in the execution of the instruments mentioned, and that Mr. De Wolf had been guilty of misconduct in his dealings with the plaintiffs.
    The complaint prayed for a partition of the real estate, and the appointment of a receiver of the property, rents, and money belonging to the plaintiffs during the continuance of the litigation ; for an injunction restraining De Wolf from interfering with the real estate or its proceeds; that De Wolf might be compelled to account with plaintiffs, concerning the premises and the trusts. “ And that the defendant, De Wolf, may be adjudged to be personally responsible for any losses which the plaintiffs may have sustained by breaches of the trust aforesaid.”
    ‘ ‘ And that plaintiffs may have such other or further relief in the premises as may be just and proper.”
    The defendant, De Wolf, answered such of the allegations of the complaint as affected him.
    On November 4, 1875, the cause came on for trial before Freedman, J., at special term.
    An interlocutory judgment was entered, stating certain facts and conclusions of law, and referring it to Henry Wehle, Esq., to take proof of the interests of the several parties in the real estate, and the condition of the premies ; and also to “ take a,nd state an account of the rents of the premises mentioned and described in the complaint, received by David R. De Wolf, and the disposition thereof by him.”
    By the decree “It was further ordered that the question of costs, as well as all other questions, be reserved until the coming in of the report and hearing for further directions.”
    Having taken proof as directed, the referee reported the same to this court.
    Meanwhile, the defendant, De Wolf, had accounted as administrator.
    It appeared, upon examination before the surrogate, that Mr. De Wolf had mingled the moneys arising from ¿the rents of the real estate with those which were the proceeds of the late Mrs. Offinger’s estate, and in making payments to the several plaintiffs had not discriminated between the different funds. And the surrogate found that defendant had paid to several of the plaintiffs amounts of money largely in excess of their respective shares in their late mother’s estate, and that this excess was properly a charge upon the real estate.
    Defendant then applied to the court for leave to set up these facts by way of supplemental answer.
    An order was made granting the relief asked for, and referring the matter again to Mr. Wehle, and directing “that upon the coming in of the supplemental report, the action may be noticed for final hearing and determination at a special term of this court.”
    After the supplemental report came in, the cause was regularly noticed for trial, and was brought on before his Honor Judge Sanford at the June term.
    After the trial, and without procuring from the court any written findings of facts or conclusions of law, the plaintiffs- entered a final judgment.
    Defendant DeWolf thereupon moved to vacate the judgment for the irregularities mentioned in the notice of motion.
    The motion was denied, and the defendant appeals.
    
      
      Erastus Cooke, of counsel, for appellant, urged :
    —I. It was irregular to enter judgment, without having first procured and filed a written decision by Mr. Justice Sabfobd, containing a separate statement of the facts found, and the conclusions of law. This was necessary under the old, and is required by the new Code of Procedure (Old Code, § 267; New Code, §§ 1022, 1228; Wright v. Sanders, 28 How. Pr. 395; Van Steenburgh v. Hoffman, 6 Id. 492).
    II. Such a decision as the law requires, is necessary in order that the defendant may present the case to the appellate court. The only means for reviewing the decision at the trial, is by excepting to the facts found, and the conclusions of law. Here is nothing to which we can except (Bridger v. Weeks, 30 N. Y. 329; Leland v. Cameron, 31 Id. 115; Doty v. Carolus, Id. 547).
    III. The plaintiffs’ argument is, that in view of the reference to Mr. Wehle, and his report, there was nothing for the court at special term to try, and hence, no written decision containing findings and conclusions was required. This is a fallacy. 1st. It is only upon the report of a referee appointed to hear and determine the whole issue, that judgment may be entered (Code of Pro. [old] § 272). Where the referee is merely to report the facts, the report has only the effect a special verdict (Id. § 272). In such case the judgment is left to the court (Id. § 260). 2nd. Here the court, in the first instance, found certain facts, and referred other specific questions, at the same time stating, that “ the question of costs as well as all other questions,” are reserved until the coming of the referee’ s report. This report, then, operated as a special verdict upon the questions of fact referred, and no further. The second order was that 'the referee report upon a single question, and that ‘ upon the coming in of the supplemental report, the action may Toe noticed for final hearing and determination(N. B.—The words “ to hear and determine,” in this order, are surplusage, inconsistent, extra-judicial and void. The issue made by the supplemental answer was simply as to certain payments alleged by De Wolf to have been made by him. This only was referred, and it is too plain for argument, that a referee appointed to pass upon one of several questions, cannot “ hear and determined) 3rd. It follows that after the reports were both before the court, and the cause was ready for a final hearing, numerous questions (i.e., the alleged misconduct of the trustee, his right to costs, and other issues raised by the pleadings), were still undetermined. And even as to the facts actioally found by the referee, there are no conclusions of lato stated. This the cotirt was bound to do, and no judgment could properly be entered until that duty had been discharged.
    
      Benjamin T. Kissam, of counsel, for respondents, urged :—
    I. The issues of fact were tried by the court, in ¡November, 1875.
    Its decision was then given, containing a statement of facts and conclusions of law (See §§ 250, 252, 267 of Code of Procedure). This decision was filed, and in pursuance of it, and the order of the court entered thereon, the reference as to title, and as to the rents received and disbursed by De Wolf proceeded.
    II. The report of the referee was made in August, 1876, and no exceptions being taken, it became absolute after eight days (Rule 39).
    III. The court in March, 1877, allowed the defendant De Wolf to set up certain alleged payments which he claimed were not allowed him, either in his account- , ing before the surrogate, or by the referee in this action, but required him to proceed with great despatch before the referee, and pay the expense out of his own private moneys.
    
      IV. The order of reference was limited to “ such payments as were disallowed by both the surrogate and the referee, and were made in good faith, and for the allowance of which clear equitable grounds exist.” The referee reported payments to some five of the plaintiffs, in the aggregate amounting to $2,177.58, which was nearly the full amount claimed. There was no exception taken to this finding of the referee, and to that extent the report became absolute under the rule (see Rule 39).
    V. The material issues in the action were settled in November, 1875. The report- of the referee in August, 1876 (so far as De Wolf was concerned), not excepted to, settled the account between the plaintiffs, the Hruzas and De Wolf. The second report of the referee, in May, 1877, made a material deduction in De Wolf’s favor, from the amount charged against him in the first report, to which he did not except, and plaintiffs did not except, and that under the rule became absolute. The only question raised by the exceptions of the defendant De Wolf, was in respect to the interest on payments. This was a question of law.
    VI. The question of interest being disposed of, there was nothing left to be done by the court but to settle the form of the judgment. It was unnecessary and improper for the court to make any decision containing the facts found, and conclusions of law. The provisions contained in the “ Code of Civil Procedure” have no application to the case (see §§ 1022, 1228).
    VII. If any irregularity has occurred the judgment is not affected thereby, and should not be disturbed (See Code of Civil Procedure, § 721, subds. 11, 12, also § 722).
   By the Court.—Vah Vorst, J.

—This is an appeal from an order denying a motion to vacate a judgment for an alleged irregularity. The action, which is in partition, came on to be tried before the Hon. John J. Freedman, at a special term of this court, November 4, 1875, without a jury.

The learned judge determined the issues, and made his decision thereon in writing, finding certain facts and conclusions of law.

But he directed a reference to a referee named by him to take proof of the interests of the parties, and to report whether the premises were so situated as that an actual partition could not be made. He also directed the referee to ascertain the liens upon the premises, and to take an account of rents, &o. The question of costs, as well as other questions, were reserved until the coming in of the referee’s report.

After such finding of facts, which disposed of all the issues, no other findings of fact were necessary to enable the defendant to obtain a review of the judgment finally entered in the action.

The further proceedings in court in the action, would be founded upon the referee’s report upon the matters referred to him.

The findings of facts and conclusion of law, the result of the trial of November, 1875, could have been excepted to, as well as the referee’s report. These latter exceptions could be disposed of by the court, as it appears they were, when application was made for a confirmation of the referee’s report. And the appeal from the judgment and order of confirmation would bring up for review all the exceptions.

The matter contained in the supplemental answer, which was allowed to be filed, presented no new issue, requiring additional findings of fact by the judge. The matter involved in the supplemental answer, which affected the accounts of one of the parties, was also referred to the same referee, and was passed upon by him, and was the subject of adjudication, when the report was before the court for confirmation.

We fail to discover any irregularity in entering up the judgment without findings and conclusions other than those made by Judge Freedman. If exceptions have been taken to such findings and conclusions, and to the order or judgment of confirmation of the referee’s report, the defendant can raise all legal objections upon the appeal from the judgment.

The question of costs was determined by the judge, by the order made when the report was before him on the final hearing. That question was then properly before him upon the findings and conclusions of Judge Freedman and the referee’s report.

The order appealed from should be affirmed with costs.

Curtis, Ch. J., and Sanford, J., concurred.  