
    SCHWEIZER v. RAYMOND.
    
      N. Y. Supreme Court, Fourth Department, Eighth District;
    
    
      Erie Special Term, May, 1879.
    Reference.—Power of Special Term to Correct Errors.— New Trial.—Laches.—Code Civ. Pro. § 724.— Statute of Limitations.—Mistake.
    The court at special term cannot correct errors committed by a referee on the trial.
    Where a defendant, having appealed from a judgment, entered upon the report of a referee, and pressed the appeal to a decision, after more than one year from the entry of the judgment moved to open the same, and that a new trial be granted on the ground of mistake and surprise at the trial,—EM, that the motion was made too late, and the defendant must be deemed to have waived the objections of surprise, &c.
    
      It seems, that even if such a motion should be made within one year after entry of judgment, as prescribed in Code Civ. Pro., § 724, the court at special term could not, with propriety, set aside the judgment after it had been affirmed at general term on the appeal of the moving party.
    Motion by defendant to open a judgment entered on the report of a referee, and for a new trial.
    The action was brought, Christoph Schweizer against Alonzo B. Raymond and A. Clayton Raymond, to recover the freight on a cargo of beans carried on the deck of a canal-boat from Albion and Brockport to New York.
    By the express agreement of shippers (the defendants) and the carrier, the beans were to be carried on deck. The plaintiff (the carrier) agreed to furnish the lumber to cover the cargo, and the defendants to see to the covering with the captain, plaintiff’s employee. Plaintiff supplied what he supposed to be sufficient lumber for the covering, but the defendants did nothing towards covering the beans, and the captain did not properly cover them, and en route they got wet from rains, and were injured to a large amount. The damages sustained were alleged by way of counter-claim.
    At the conclusion of the trial, defendants’ counsel, in addition to various questions of fact, asked the referee to find the following conclusions of law: “1. That the plaintiff is entitled to recover of the defendants in this action the sum of $159.77. 2. That the defendants are entitled to recover damages of the plaintiff in the sum of $1,152.10. 3. That the defendants are entitled to judgment against the plaintiff, in a balance of $992.33 and their costs of this action.”
    The referee found as requested in the first above request, and refused to find the second and third requests.
    Judgment was entered for plaintiff on the report, March 11, 1878, on which day a copy of the judgment, with notice of the entry thereof, was served on defendants’ attorney.
    The defendants thereupon appealed from the judgment to the general term, where the appeal was heard, and the judgment affirmed.
    On May 17,1879, notice of this motion was served, to be heard May 22, 1879, “for an order opening the judgment entered in this action, in favor of the plaintiff against the defendants . . . . and for. a new trial on the ground of defendants’ mistake and surprise,” which mistake and surprise, as set forth in the accompanying affidavits, consisted in the above requests made to the referee to find conclusions of law.
    
      D. Q. Hyde, for defendants and motion.
    
      George W. Cothran, for plaintiff, opposed.
   Barker, J.

This court is without power to grant the relief asked for by the defendants.

The court, at special term, cannot correct errors committed by the referee on the trial, nor does the moving party ask that.

Unless the judgment entered on the report of the referee is opened and set aside, the defendants cannot-be relieved from the predicament in which they conceive themselves to be, arising out of their own mistake and misapprehension.

The judgment was entered, of which the defendant had due notice more than one year prior to making this motion. The application is, therefore, out of time. Had the motion been timely in all respects, then doubtless the court could have given relief upon the grounds stated, if upon examination they appeared to be based upon merits (Code Civ. Pro. § 724).

The prior sections (721, 722, 723) contain provisions 7 for sustaining verdicts, judgments and proceedings in.;, the face of mistakes, omissions, defects and irregulari-", ties, and for correcting and supplying the same.

The right -to relieve the moving parties must be found in the. provisions of section 724, and the time within which the aggrieved party must move is one year.

As was stated by the court on the argument, the moving party having appealed from the judgment and pressed the same to a decision before making this motion, he is now precluded from urging before this tribunal that the judgment ought to be set aside, with a view of relieving them from a mistake, inadvertence, surprise or excusable neglect. If either of these things did occur in fact, they must be deemed as waived.

I think it is without precedent in this stage of the proceedings to relieve the parties in the manner sought.

If the motion had been made within one year after notice of the entry of judgment, I am satisfied that this court could not, with propriety, set aside the. judgment after it was affirmed at general term on the appeal of the moving party (Utica Ins. Co. v. Lynch, 2 Barb. Ch. 573 ; Lyon v. Merritt, 6 Paige, 473 ; Geston v. Codwise, 1 Johns. Ch. 189).

These cases are cited from among many that bear on the question as indicating the reasons and propriety of the rule.

The motion is denied with $10 costs. Let order be entered accordingly.  