VAN SLYKE against HYATT

VAN SLYKE against HYATT. Supreme Court,. First Department, First District; General Term, September, 1870. Reference.—Motion to Correct Report If a referee in Ms report states only a general conclusion, without specifying the issues upon which he finds, the remedy of the party aggrieved is by a motion to refer laalc the cause for a further finding. A motion- to set aside the report as irregular is not proper, and should be denied. Appeal from an order. This action was brought by John K. Yan Slyke, plaintiff and appellant, against Thaddeus. Hyatt. The plaintiff claimed, as assignee of one Charles K. Covert, to recover from the defendant money lent, notes lent or advanced, money received to the use of Covert, and goods sold. The defendant in his answer denied any indebtedness to the plaintiff, and denied that he had been indebted to Covert, the assignor, and for a further defense claimed a set-off against Covert. The cause was referred for trial of the issues, and the referee reported “As Matters of Fact, “I. That, at the time mentioned in the complaint, the defendant was not indebted to Charles K. Covert, in any sum whatever. “II. That the defendant is not indebted to the plaintiff as alleged in this action, and as a “ COHOLTTSIOH OF LAW, “I find that the defendant is not indebted to the plaintiff in this action, and the defendant is entitled to judgment against the plaintiff for his costs.” The plaintiff thereupon moved at special term and chambers “for an order setting aside the said report of the referee, for irregularity in this: That the said referee has not, in his decision and final report in said action, stated the facts found, if any, and for such other or further order as shall be proper in the premises.” The motion was heard before Mr. Justice George G. Barnard, and denied; and from the order denying it, the present appeal was taken. Charles Cheney, and Joseph M. Dixon, for the appellant. I. The order appealed from involves the merits of the action, and affects a substantial right of the plaintiff, and is appealable (Mathews v. Jones, 1 E. D. Smith, 429). II. The code, section 272, and rule 32 of this court require the referee in his decision and final report to state the facts found by him. The referee in this case has utterly omitted to comply with this requirement." Either party, as matter of right, was entitled to these findings (Wright v. Sanders, 28 How. Pr., 395; Hulse v. Sherman, 13 How. Pr., 411; Rogers v. Beard, 20 How. Pr., 282; Peck v. Yorks, 14 How. Pr., 416; Leffler v. Field, 33 How. Pr., 390; Tilman v. Keane, 1 Abb. Pr. N. S., 23; Snook v. Fries, 19 Barb., 313). The issues of fact raised by the pleadings in this action, and which should have been passed upon the referee were: (1.) Were the moneys lent and advanced by Charles K. Covert to defendant, as stated in the complaint ? (2.) Was the note of Jacob A. Stamler lent to defendant by said Covert as alleged, and did defendant receive the proceeds of the discount thereof ? (3.) Did said Covert loan to defendant the note of Clara Crowell, as stated in complaint; was the same transfered by defendant, and was the same collected of said Covert. (4.) Were the goods and merchandise' sold and delivered, as stated in the complaint? (5.) Were the claims of said Covert assigned to plantiff, as stated in the complaint? (6.) Did the offset against said Covert in favor of defendant exist at the time of the assignment and transfer to plaintiff of Covert’s claim against defendant. Each one of these is a very material issue, and it was a matter' of necessity for the referee to pass upon each of them before he could arrive at a proper determination. Yet it does not appear by the report whether he passed upon all or any of them. He may have found that the claims of said Covert never existed, or he may have found that said Covert never assigned his claim to plaintiff. Or, again, he may have found both of these issues in the affirmative, and yet have found that the offset in favor of defendant balanced the claim of the plaintiff. The plaintiff has a right to know the conclusions of the referee on all these issues, so that he may except to any of them which he may deem erroneons, and obtain redress for the error. As our supreme court, at general term, in Rogers v. Beard (20 How. Pr., 284), most justly says : “It is essential that the findings of the referee upon the facts be explicit, and cover all the material facts. Parties have a right to know the precise ground upon which an adverse decision is put, and it is very important to a proper review that the court be fully advised by the findings of the referee upon the precise grounds of his decision. This is also essential to secure the public confidence to this mode of trying causes.” III. The only remedy the ptaintiff has, is to have the report of the referee sent back to him for amendment, which relief the special term in this case refused. A referee on his own motion cannot, after having made his report, make any new or other findings to sustain or overthrow such report (Voorhis v. Voorhis, 50 Barb., 119), and the court should therefore send the report back to him, with directions to state the findings of fact explicitly in his report, as has been the uniform practice of this court (see cases above). Ambrose Monell, for the respondent. I. By section 373 of the Code of Procedure, all that is required of a referee in his report is “to state the facts found and the conclusions of law separately.” II. Under no circumstances where he is “to hear and determine,” is he required to .state the evidence on which he bases his findings. III. The issues were “whether defendant was or was not indebted to Covert, and subsequently to the plaintiff as assignee,” and the only finding of fact on such issue should be whether he was or was not so indebted. IY. The findings distinctly pass upon these issues, and the referee is required to find such facts only as are necessary to sustain his judgment (Nelson v. Ingersoll, 27 How. Pr., 1; Sermont v. Baetjer, 49 Barb., 363). Y. Should the report be thought not in conformity with the issues, it is submitted that even then that question cannot be raised on the present appeal. (1.) The only mode of reviewing a referee’s decision after judgment is by appeal (Laws of 1849, 680, § 323 ; Enos v. Thomas, 5 How. Pr., 361, Supreme Court, 1850; Comstock v. Rathbone, 1 Johns., 138). YI. It is farther submitted that the omission of the appellant to request the referee to pass upon any issue he desired to have passed upon, is a fatal objection to the present appeal (Grant v. Morse, 22 N. Y., 323; Ashley v. Marshall, 29 N. Y., 494; Brainerd v. Dunning, 30 N. Y., 211). [MAJORITY — By the Court. Ingraham, P. J. (orally).] By the Court. Ingraham, P. J. (orally). We do not think that the motion made in this case was the proper one. It is not the proper practice to set aside the report of a referee at chambers upon such a ground as this. The plaintiff should have moved to have the referee make a further report. There is no irregularity in this report, and the order denying a motion to set it aside for an irregularity, was proper. If farther or more specific findings are necessary in such a case, the motion should be to send the case back to the referee for a further finding. The order appealed from was right; and must be affirmed with costs. Present, Ingraham, P. J. and Cardozo, J. In this case George G. Barnard, J., having made the order appealed from, did not sit.