
    Holmes et al. v. Evans et al.
    
    
      (Superior Court of New York City,' General Term.
    
    March 2, 1891.)
    Setting Aside Report of Referee—Newly-Discovered Evidence.
    A motion to open and vacate the report and findings of a"referee, and to take the testimony of another witness, and to direct the referee to proceed as if his report • had not been delivered, cannot be sustained, under Code Civil Proc. N. V. § 724, which provides that the court may in its discretion relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The proper relief is by motion for new trial, upon -the ground of newly-discovered evidence.
    ■ Appeal from special term.
    Artemus H. Holmes and others sued George S. Evans and others. Plaintiffs appeal from an order denying a motion made by them 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 ins said report had not been delivered.
    Argued before Sedgwick, 0. J., and Truax, J.
    
      William B. Hornblower, for appellants. John C. Tomlinson, for respondents.
   Truax, J.

It was contended on the argument that the court had power, under section 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, order, 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 wpuld 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 section 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. Bank v. Heaton, 6 Thomp. & C. 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 ease should be made and presented to the court. Jewelry Co. v. Steinau, 58 How. Pr. 315. The order appealed from is affirmed, with costs.  