
    SCHULTHEIS v. McINERNY.
    
      N. Y. Supreme Court, General Term, First Department ;
    
    
      March, 1891.
    1. Reference; Findings.] A referee’s report is irregular if it does not include all the findings of fact indicated by him as found on the requests of either party.
    
    2. Reference—sending back reporti\ The court at special term may on motion send the report of a referee back to him, that he may include therein all the facts found by him upon the requests of the parties.
    3. Motions and orders ; prayer for reliefs Under a prayer for further relief in an order to show cause why a referee’s report should not be set aside, the court may order that the case be sent back to the referee in order that he may make a proper report, although such relief is not specifically asked.
    Appeal from an order denying a motion to set aside a referee’s report.
    Action of foreclosure brought by Christian H. Schultheis against Thomas Mclnerny and others. It appeared from the requests to find submitted by the parties which the referee had marked as found or not found, that the report did not include all the facts found by the referee.
    Plaintiff’s complaint sought to foreclose a purchase ■money mortgage for $20,000, and a building loan mortgage for $16,122.59.
    An answer interposed by defendant Albertson ■pleaded a third mortgage to himself, of part of the premises, as a junior lien; alleged that since it was given the premises had been improved by the erection of buildings, and prayed foreclosure with special «directions as to order of sale.
    Another defendant, Georgiana F. Webster, pleaded fthat plaintiff agreed with her that if she would put up (the buildings on part of the premises, he would apportion the expense, and release that part; and that she «expended $8000 thereon but he refused to release it; ¡and prayed apportionment and release.
    The Lorillard Brick Company, also a defendant, pleaded a mortgage of the premises to them for $5000, and prayed foreclosure and directions as to sale.
    The decision rendered by the referee contained ■the findings of fact and of law on which judgment was (directed by him.
    Requests on behalf of the Lorillard Brick Company were submitted, some of which were marked "“not found;” others were marked “ found as against plaintiff and Albertson and Webster only,” or “ found as to defendants Albertson and Webster only.”
    Some of the requests of the defendant Webster were found, and some not found. These various requests, with the referee’s note of such rulings upon them, were printed in the appeal book. And some of the requests thus found were not included in the findings contained in his decision, but additional thereto.
    
      Henry Wehlz and C. W. Klebisch, for appellant.
    
      T. Wandell and Bacon, Leeds & Van Steenbergh, for respondents.
    
      
       See note at the end of the next case but one, p. 202.
    
   Van Brunt, P. J.

It is conceded upon the papers submitted upon this appeal, that the referee did not include in his report all the facts found by him. This •clearly made his report irregular, because by §1022 of the Code it is provided that the decision of the court -or the report of the referee upon the trial of the whole issue of fact must set out the facts found and the conclusions of law. This is an express direction that the facts found must be set out in the decision or report, ■and the reason for this is apparent, because an appeal may be taken and such appeal founded upon errors ■contained in the report itself, viz.: that the conclusions ■of law do not follow from the facts found by the referee ; and in order that the appellant may bring up this question, it is necessary that there should be contained in the report or decision, all the facts found.

An inspection of § 1023 reinforces this view, as it is there provided that either party may request findings of fact, and the referee is bound to mark on the margin of the papers submitted, his rulings upon such requests, which papers may be returned to the parties ■and never enter into the judgment roll, and only come before the court as part of the case, if a case is made and annexed to the judgment roll.

Therefore it is apparent from this section also that the facts found by the referee, no matter whether at the request of one side or the other, must be incorporated in his report. This court has repeatedly refused to entertain appeals where it appeared that this provision of the Code had not been complied with. We think, therefore, that the case should have been sent back to the referee in order that he might make a report complying with the provisions of the Code, including therein all the facts found by him. It is true no such relief was asked specifically in the order to show cause; but the order asked for such further or other relief as might be just, and under this provision the court had authority to make the order suggested.

It appearing that the respondents have offered to the appellants to make such an order, the reversal of the order in the court below should be without costs, and an order should be made sending the case back to the referee in order that he may make a report in which shall be included all the facts found by him.

Brady and Daniels, JJ., doncurred.  