
    Hyman Bloom et al., Resp’ts, v. National United Benefit Savings and Loan Company et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 20, 1894.)
    
    1. Exceptions—Report of referee—Filins nunc pro tune.
    Leave to file exceptions nun e pro tune will be denied if made after confirmation of the referee’s report.
    2. Motion and order—Loches.
    The moving papers must show merits in an application for favor.
    Appeal from an order denying a motion for leave to file exceptions nunc pro tune to the report of a referee after confirmation, and for entry of final judgment thereon.
    
      J. H. Hopkins, for app’lts; J. B. M. Stevens, for resp’ts.
   Dwight, P. J.

—There seem to have been several good reasons for denying the defendants’ motion in this case. The action was in behalf of the plaintiffs named, and all others of the shareholders of the defendant company who might elect to come in as parties, to recover of the other defendants—certain directors of the company—for loss of .assets though the negligence and misfeasance of such defendants. The principal issues joined in the action had been tried, and determined in favor of the plaintiffs ; and an interlocutory judgment had been entered, which directed, among other things, that an account be stated of debts and liabilities of the company, for which the shareholders were or might be personally liable. A reference was accordingly had, to take and state such account. The referee made his report, which was duly filed, and notice of the filing was given to the defendants. A motion was duly noticed and made for the confirmation of the report, and for final judgment. The defendants were represented on the hearing of the motion, and opposed the confirmation of the report, although they had filed no exceptions thereto ; and they made, at that time, no request for leave to file exceptions, nor for time—before the confirmation of the report—in which to apply for such leave. The report was accordingly confirmed, and final judgment was directed and entered thereon; and it was only after the entry of such final judgment that notice was given on behalf of the defendants for leave to file exceptions nunc pro tune, on the ground of inadvertence. The motion was clearly too late. The attorney and the counsel for the defendants must have discovered on the hearing of the motion to confirm, if they did not know it before, that they had no exceptions filed to the report of the referee; and then was the time, if they desired to have exceptions, to ask for leave to file them then and there, or for a postponement of the confirmation of the report pending their application for such leave. this means, if the leave should be granted, the exceptions would be before the court on the motion to confirm, and for judgment. To interject exceptions' into the record nunc pro tune would be to malee a ease on appeal which was not the case upon which the order and judgment appealed from were made and entered.

There is another ground upon which we think the court might properly have denied the motion. The motion was for a favor,— to excuse loches. The moving papers should have shown merits in the application, viz. that there was some reasonable ground for the exceptions which leave was asked to file. So far as appears by the moving affidavit, there was no ground whatever for any exception, and the motion was a purely dilatory proceeding. The order appealed from should be affirmed. All concur.

So ordered, with $10 costs, and disbursements of this appeal.  