
    SAMUEL HATHAWAY, Plaintiff, v. HENRY RUSSELL, Defendant.
    I. Accounting, action fob.
    1. Reference to hear and determine issues, the determination of the issues not involving the taking of the account.
    
      (a) REFEREE’S ACTION AND REPORT, WHAT PROPER.
    
    1. To hear, determine, and report on the issues, and if he decides that plaintiff is entitled to an accounting, then to pass on the principles on which the accounting should be had, so far as the same are involved in the determination of the issues, and to direct the entry of an interlocutory judgment for an accounting in conformity with his report.
    (6) PROCEEDINGS UPON A REPORT DIRECTING INTERLOCUTORY JUDGMENT POR AN ACCOUNTING.
    1. Entry of interlocutory judgment in conformity with the report is matter of course, unless there are allegations of irregularity, surprise, or newly-discovered evidence.
    1. Motion for interlocutory judgment on such report.
      
    
    
      (a) What cannot he reviewed on.
    
    1. Neither the merits nor any alleged error in the admission or rejection of evidence, or in the finding.
    
      (a) Mode in which a review of the merits or of alleged errors, is to he obtained, pointed out.
    
    (e) ACCOUNT, TAKING OP.
    1. Mode of proceeding under interlocutory judgment directing an accounting by defendant.
    
      (a) Plaintiff has a right to the formal bringing in by de
      
      fendant of the account in the form of debit and credit and duly verified, and to his examination on interrogatories.
    
    Before Freedman, J., at Special Term.
    
      Decided October 27, 1879.
    Motion for interlocutory judgtnent.
    
      
       The question whether, under an order referring all the issues to a referee to hear and determine, without also constituting him a referee to take and state the account- in case he should determine that plaintiff was entitled to an account, the referee was empowered to take and state the account, seems not to have been involved in above case, and is not considered in the opinion.
      In Palmer i>. Palmer (13 How. Pr. 363), it is held that under such an order of reference, the referee is empowered to take and state the account. It is submitted that the reasoning by which the court reached that conclusion is not satisfactory. It is this: The court, upon a trial before it of the issues, had the power, in case it determined in favor of an- accounting, to proceed and itself take and state the account. A referee to whom all the issues are ref erred to hear and determine stands in the place of and is substituted for the court. Therefore areferee has the same powers of the court and can, the same as the court could, proceed to take and state the accounts. The error in the argument is that the order of . reference does not invest, the referee with all the powers of the court. It only invests him with so 
        
        much of the power of the court as relates to the hearing and determining of the issues (i. e., the trial thereof), and matters incidental thereto. Now the court takes and states the account, not by virtue of its power to hear and determine issues, but by virtue of its general powers, wholly distinct and independent of its power to hear and determine. As the power of the court to take and state accounts is not derived from, but wholly independent of its power to hear and determine, it follows that the transfer of the latter power to a referee does not carry with it the former.
      Cases will arise where it would-be deemed advisable, by the court and parties, to entrust the decision of the issues to one person, and the taking of the accounts to another, by reason of the peculiar aptitude for, skill in, and knowledge of the duties to be performed by them respectively, in the execution of the trust to be confided to them.
    
    
      
       It would seem that no motion to the court for interlocutory judgment is necessary, unless questions are reserved by the report to be passed on by the court; but that such judgment should be entered by the clerk, as of course. If it is sought to set aside the report on the ground of irregularity, or to open it and have a new trial on the ground of surprise or newly-discovered evidence,' a motion should be made therefor in the same manner as when it is desired to set aside a verdict for like causes.
    
    
      
       It would seem that under the present practice written interrogatories and written answers thereto are not absolutely requisite; but that the party may be examined orally before a referee as to his accounts.
    
   Freedman, J.

The referee to whom it was re ferred to hear and determine the issues, reported only in favor of plaintiff’s right to an accounting within certain limits, but did not take and state the account between the parties. This course was adopted in order to facilitate a review of his decision before putting the parties to the expense of a long- accounting, and the plaintiff now applies for an interlocutory judgment, in conformity with the report. This practice has prevailed before the new Code (2 Van Santvoord Eq. Pr. 194, 195), and I cannot find that the latter has abrogated it.

Upon the present application I cannot consider allegations of error, nor review the merits, for the evidence is not before me, and there being no allegation of irregularity, surprise, or newly discovered evidence, an interlocutory judgment should be entered as of course in conformity with the report.

Defendant’s right of review may then be exercised, either under section 1001 of the new Code by motion for a new trial to the general term, or, under section 1349, by appeal to the general term from the interlocutory judgment.

If-the defendant simply claims that the findings of fact do not support the conclusions of law, he may, within ten days after service of a copy of the decision or report of the referee, and notice of the entry of the interlocutory judgment thereon, file exceptions, to the conclusions of law and rely solely upon them.

•' If, on the other hand, he claims that there is no evidence to sustain the findings of fact, or that the referee refused to find facts which he should have found, and desires a review of the questions of law arising upon such findings, or refusals to find (for such questions constitute questions of law under section 993), or if he desires a full review upon the law and the facts under section 1349, he must make, serve and print a full case containing the appropriate exceptions together with the evidence.

But whichever mode of review he may resort to, he must go to the general term ; for the remedy, by motion for a new trial on the judge’s minutes, or by a similar motion to the special term on a case, applies only to trials by jury, while section 1002 expressly provides that a trial by a referee cannot be reviewed, by a motion for a new trial, founded upon an allegation of error in a finding of fact, or ruling upon the law, except in a case specified in section 1001.

As to the mode in which the interlocutory judgment should direct the accounting to proceed, it must be considered that an accounting before a master in chancery was regulated by the rules of that court, the 107th of which provided that “all parties accounting before a master shall" bring in their accounts in the form of debtor and creditor; and any of the other parties who shall not be satisfied with the accounts so brought in, shall be at liberty to examine the accounting party upon interrogatories as the master shall direct.”

• In Wiggins v. Gans, decided in 1851, in the superior court with the concurrence of three judges, it was held, that the rules and practice of the court of chancery, on the subject of accounting, existing at the time of the adoption of the Code, are not inconsistent with any provision of the Code, and that consequently, by section 469, they are continued in force. The defendant, in that case, was thereupon ordered to bring in an account like that prescribed by the said 107th rule, duly verified as prescribed by the chancellor, and file it with the referee within ten days, in default of which the. plaintiff might apply for an attachment.

Since that time the same rule has been recognized by the supreme court in Palmer v. Palmer (13 How. Pr. 364), and Ketchum v. Clark (22 Barb. 319), and I cannot find that any change has been effected by the new Code.

The conclusion is, therefore, that although the formal mode of proceeding under the chancery rules must not necessarily be pursued, the plaintiff nevertheless has the right, if he demands it, to the formal bringing in of the account in the form of debit and credit, as prescribed by the rule, and duly verified by affidavit as stated in Story v. Brown (4 Paige, 112), and Benson v. Leroy (1 Id. 122), and to the examination of the defendant upon interrogatories.

The motion for interlocutory .judgment must be granted as prayed for.  