
    James Surpless, Plaintiff, v. Oliver B. Surpless, Robert M. Dunn and James Surpless, Jr., Defendants.
    (Supreme Court, Kings Special Term for Motions,
    May, 1910.)
    Reference — Report and findings: Findings of fact and conclusions of law — Further, additional and new findings — Power of referee to make: Review on coming in of report — Sending back report or rehearing — For correction of or further findings.
    Where a referee reports separately his findings of fact and conclusions of law and an objecting defendant neither makes requests to find pursuant to section 1023 of the Code of Civil Procedure, nor takes exceptions to the report under section 994 of said Code, • a motion to send hack the report for further findings will be denied.
    Motior to -have a referee’s report sent back for further findings. The opinion states the case.
    
      Fred L. Gross, for plaintiff.
    Peacock & Steves, for defendants.
    Abner C. Surpless, executor, in person.
   Crane, J.

The question of damages to be allowed for breach of the partnership agreement was brought to the attention of the parties and of the referee on the hearing and was stated by the latter to be a matter of accounting. When the reference was closed, the objecting defendant made no requests to find pursuant to section 1023 of the Code of Civil Procedure, neither did he take any exceptions to the report of the referee pursuant to section 994 of the-Code.

It is conceded that the referee has complied with the statute in stating separately his findings of fact and conclusions of law, but the defendant claims that he has made no finding-on the question of damage for breach of contract and desires to have this court send the report back for further findings upon this matter.

This party could have made proper requests to find of the referee, and his refusal to find upon this matter would have presented a question of law; but I do not think that he can neglect the provisions of section 1023 and then apply to the court for relief. Judge Finch in Gormerly v. McGlynn, 84 1N. Y. 284, has this to say: “ When, therefore, the legislature, by section 1023, fixed and determined the practice as to finding's of the court or referee, and provided that the request should be made and the findings passed upon before the final decision or report, the provision was an evident disapproval of the practice permitted by rule 32, which allowed such requests and findings after the decision or report, and upon the settlement of the case, and made that rule inoperative. The provisions of section 10'23 as to the time of presenting requests and the required action of the justice or referee were unnecessary and improper, if rule 32 was to remain in force. Its evident purpose was -to change the practice in that respect and not permit an application for findings, or compel a decision upon them, after the final disposition of the ease. This intention is made more clear by the provision that any extension of the time within which to ask for findings beyond the submission of the case is to be controlled by the court or referee, but is not to reach beyond the rendering of the decision or report. The purpose to keep within that limit is very apparent.”

In Gardiner v. Schwab, 34 Hun, 582; First National Bank v. Levy, 41 id. 461, and Petrie v. Trustees of Hamilton College, 92 id. 81, it was stated that the court could not send a report back for further findings, but in Fairman v. Brush, 15 N. Y. Supp. 44, and Schultheis v. Mclnerny, 13 id. 684, it was held that the power to send back a referee’s report for additions or corrections where the legal procedure had not been complied with was inherent in the court.

For failure of this defendant to make any requests to find of the referee, and the report being full and regular in all particulars, I shall deny this motion.

Motion denied.  