
    William H. Huffman, Resp’t, v. William Beever, Impl’d, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1893.)
    
    Reference—Findings—Direction of judgment.
    The report of a referee should not he sent back for further findings or further directions as to the form of judgment where the referee has passed upon all the requests to find and embodied them to a large extent in his-■report, and has made distinct conclusions of law and directed a judgment accordingly. Such direction is sufficient and indicates the judgment which is to be entered and from which either party may appeal, but its deficiencies or errors cannot be corrrcted by an order for a further direction of judgment.
    Appeal by the defendant, William Beever, from an order of the Erie special term, entered in Allegany county, sending back a referee’s report with directions to make further findings and to prescribe the form of judgment to be .entered against the defendant, William Beever.
    
      William, Spargur, for app’lt; Rufus Scott, for resp’t.
   Dwight, P. J.

We are at a loss to understand why this order-should have been asked for. At the time of the submission of the case the plaintiff’s attorney submitted to the referee a list of no less than fifty-one requests to find on matters of fact, and the referee has not only noted on the paper his disposition of each of such requests, finding as requested in all but three instances, but he has embodied such findings in his report to a far greater extent than was at all necessary, because many of such findings, while they may have been pertinent as matters of evidence, cannot have been material to support any judgment asked for by the plaintiff. We say “ any judgment asked for ” because the pleadings in the action are not before us and we do not know, except as we infer from the findings of the referee, what were the issues between the parties, nor what the judgment asked for in the complaint. But in a careful comparison of the report with the requests to find we are unable to discover any fact, likely to be material to the judgment, covered by the plaintiff’s requests which is not embodied in the report of the referee besides being passed upon in response to the requests to find. There, was, therefore, clearly no occasion for a motion for further findings, even if, as contended, the practice affords that form of relief in any case.

But counsel for the plaintiff are especially tenacious of that part of the order appealed from, which directs the referee to prescribe the form of a judgment against the defendant, William Beever; and here, again, -we deem the motion unnecessary and the order not to be upheld. The report of the referee, after finding with great fullness and particularity upon the matters of fact which we may suppose were in issue between the parties, proceeds, separately, to find nine distinct conclusions of law, and directs a judgment accordingly, after providing for a dismissal of the complaint as to the defendant, Lewis.

There can be no doubt about the effect of this direction. The judgment so directed is to be entered against both defendants other than Lewis. It is judgment in accordance with the conclusions of law. Whatever matters are found as conclusions of law are to be adjudged by the judgment to be entered. This may be less than the plaintiff is entitled to, and it may be more, nevertheless it is the judgment which either party is entitled to enter and from which either party is at liberty to-appeal. Its deficiencies or its errors cannot be corrected beforehand by an order for a further direction of judgment.

We are unable to discern any good ground for the order appealed from, and are of opinion that it should be reversed, and the motion denied.

Order appealed from reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Lewis, Macomber and Haight, JJ., concur.  