John Kennedy and William Kennedy, Appellants, v. Joseph F. McKone, Respondent, Impleaded with Others

John Kennedy and William Kennedy, Appellants, v. Joseph F. McKone, Respondent, Impleaded with Others. No. 2. Costs—the decision of a referee as to awarding costs cannot be reviewed at Special Term. The report of a referee appointed to hear and determine the issues has the same force and effect as a decision after a trial at Special Term; and where such a referee, after finding all the facts necessary for the decision of the question, awards costs upon those facts in accordance with his conclusions of law, the Special Term has no more power to overrule the referee with regard to these than with regard to any other of his conclusions. Appeal by the plaintiffs, John Kennedy and another, from an order of the Court of Common Pleas for the city and county of New York, made at a Special Term thereof and entered in the office of the clerk of said court on the 28th day of December, 1895, denying their motion for a retaxation of the costs in the action. The action was tried before a referee, who found that the defendant William Winter was entitled to judgment of foreclosure and sale for any deficiency arising thereon against the defendant Joseph F. McKone. Artemas B. Smith, for the appellants. John E. Eustis, for the respondent. [MAJORITY — Barrett, J.:] Barrett, J.: The question presented by the motion- which resulted in the order appealed from was decided by the referee. He found all the facts necessary for the decision of the question, and upon those facts he awarded costs in accordance with his conclusions of law. The court at Special Term could not overrule the referee with regard to these any more than with regard to any other of his conclusions. His decision upon all questions presented to him could only be reversed by an appeal from the judgment entered upon his report. The report of a referee appointed to hear and determine the issues has the same force and effect in all respects as the decision of a justice of the court after a trial at Special Term. It follows that the motion should not have been entertained. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements of the appeal, and the motion dismissed, with ten dollars costs. Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion dismissed, with ten dollars costs.