a. A referee cannot, while professing to admit evidence absolutely, admit it, in fact, de bene esse, and then reject it upon making up his report upon the whole case (Allen v. Way, 3 Code Rep. 243). But on the trial the referee received evidence of the declarations of a third party, but with a proviso that such evidence should be struck out if the defendant did not supply other proposed evidence bringing such declarations home to the plaintiff, by showing his assent thereto, or adoption thereof, and afterward the referee, for want of such supplemental evidence, struck out such declarations and so reported, the court would not interfere with the report, unless the defendant excepted to such provisional reception of the evidence, or at the close of the case obtained a specific ruling thereon and then excepted (Brooks v. Christopher, 5 Duer, 216).

b. Amendments.-The power of referees to allow amendments, extends only to such amendments as the court may order on a trial (see Woodruff v. Hurson, 32 Barb. 557; Secor v. Law, 3 Trans. App. 328; and note to § 173, ante), or as may be made under § 169 and 170. The granting or refusing an amendment, within the limits of the power of a referee to grant, is a matter within the discretion of the referee, and his decision is not reviewable (Woodruff v. Hurson, 32 Barb. 557). A referee may permit an allegation that an assignment was in writing and for a certain sum, to be amended to allege that the assignment was by parol and as security for an uncertain sum (Hoyt v. Hoyt, 8 Bosw. 511). He may permit new bill of particulars to be substituted for that annexed to the complaint (Melvin v. Wood, 4 Abb. N. S. 438; 3 Keyes, 533; see Patchin v. Peck, 38 N. Y. 39).

c. Costs.-Referees to whom the whole cause is referred may pass on the question of costs, where costs are discretionary (Renouil v. Harris, 1 Code Rep. 125; Graves v. Blanchard, 4 How. 303; Luddington v. Taft, 10 Barb. 448; Pratt v. Stiles, 9 Abb. 150; 17 How. 211), and the court of appeals will not review this discretion (Barker v. White, 3 Keyes, 617). Referees cannot award costs against an executor or administrator personally, or against the estate he represents (Mersereau v. Ryerss, 12 How. 300).

d. Production of books, &c.-A referee has not authority to order the production of books, &c. (Frazer v. Phelps, 3 Sand. 741), and the court will not in a common law action confer any such authority upon him (North v. Platt, 7 Rob. 207). Where a referee is ordered to take accounts, the referee's certificate that the production of books and papers is necessary, will be regarded as presumptively sufficient to warrant an order for such production. The burden of showing that the order ought not to be made, would be upon the adverse party (ib.) Nor has a referee the power to strike out a complaint for any default of the plaintiff in producing papers, &c. (Bonesteel v. Lynde, 8 How. 226).

e. Review of proceedings before referee pending the ref erence. The court will not interfere on motion in a matter within the discretion of a referee before the referee has reported. The party must wait until the referee has made his report and then move to set aside the report (Scher merhorn v. Develin, 1 Code Rep. 28; see Langley v. Hickman, 1 Sand. 681), or appeal from the judgment thereon. But where, pending a trial before a referee, he decides to allow an amendment of the complaint, the defendant may immediately, and pending the reference, move the court appointing the referee, at special term, to review such decision of the referee (Union Bank v. Mott, 19 How. 114; Billings v. Baker, 6 Abb. 213); and in Cooley v. Huntington, 16 Abb. 384, note, the court, pending a reference, entertained a motion to adjourn the proceedings before the referee.

f. Report of referees.-A report of any two of the referees is valid (2 R. S. 384, § 46). The report must state the facts found, and the conclusions of law separately (Code, § 272, Rule 32; 2 R. S. 384, § 47; Roberts v. Carter, 28 Barb. 462; Lane v. Borst, 5 Rob. 609; Bridger v. Weeks, 30 N. Y. 329). If it does not, the court will order a further report to be made, on the application of either party, or of its own motion (Snook v. Fries, 19 Barb. 313;

Parsons v. Suydam, 3 E. D. Smith, 276; see Church v. Erben, 4 Sand. 691; Van Steenburg v. Hoffman, 6 How. 492; Lakins v. Erie R. R. Co. 11 id. 41; Hulce v. Sherman, 13 id. 411); and if, for any reason, effect cannot be given to such order, then the court will set aside the report (Peck v. Yorks, 14 How. 416; Wright v. Sanders, 28 How. 394; Tilman v. Keane, 1 Abb. N. S. 23; Leffler v. Field, 33 How. 385). An opinion referring argumentatively, and in a general way, to the conclusions of fact and law at which the referees arrived, is not such a statement of the facts found by them, and their conclusions of law thereon, as is contemplated (Mills v. Thursby, 12 How. 418; and see Doke v. Peck, 1 Code R. 54; Deming v. Post, id. 121; Sisson v. Barrett, 2 N. Y. 406). If there are issues upon which no evidence is given, he need not notice them in his report (Ingraham v. Gilbert, 20 Barb. 152); and to the like effect is (Patterson v. Graves, 11 How. 91; Marston v. Johnson, 13 id. 93). The findings should be upon the issues only, and not upon the evidence (Wiltsie v. Eaddie, 4 Trans. App. 481).

a. A report which entirely ignores the principal or only issue in the case, is defective and will render the judgment võidable (Collins v. Clark, 54 Barb. 184).

b. An objection that the report does not state the findings of fact and the conclusions of law separately, cannot be raised on appeal; the remedy is by motion to correct the report (Platt v. Thorn, 8 Bosw. 574).

c. If a fact is omitted in the referee's finding, either party requiring a finding as to such fact should apply to the court to compel such a finding (Priest v. Price, 3 Keyes, 222; Colwell v. Lawrence, 38 N. Y. 71). An exception to the report because of such omission cannot be considered on appeal (id; Hartford R. R. v. N. Haven R. R. 3 Rob. 412; Mosher v. Hotchkiss, 3 Keyes, 161; Brooks v. Van Every, id. 27; see Van Etten v. Currier, id. 333; Colwell v. Lawrence, 5 Trans. App. 307; Grant v. Morse, 22 N. Y. 323; Wiltsie v. Eaddie, 4 Abb. N. S. 393; 4 Trans. App. 481). Facts not included in the referee's findings cannot be considered on appeal (Mosher v. Hotchkiss, 3 Keyes, 161). See in note to § 268, ante.

d. A referee to whom the issues are referred is not, unless so ordered, to report the evidence, but the facts (Patterson v. Graves, 11 How. 91; Dorr v. Noxon, 5 How. 29). He need not report negatively what facts are not found (id.)

e. Until the report of a referee is signed by him and delivered, he may alter it as he pleases. He should not advise either party of his decision until his report is signed and ready for delivery (Ayrault v. Sacket, 17 How. 461; S. C. id. 507; 9 Abb. 154, note; and see Kissam v. Hamilton, 20 How. 376)..

f. After a referee has signed and delivered his report, he has no power to alter it (Shearman v. Justice, 22 How. 241; Cooper v. Bowles, 42 Barb. 98; Leffler v. Field, 33 How. 385; Niles v. Price, 23 How. 473). Where after a referee had delivered his report, in which he dismissed the complaint as to one defendant, and afterward added "with costs to said defendant," such addition was on motion stricken out with costs (id.; see Nelson v. Ingersoll, 27 How. 1). Where a referee made [simultaneously] two reports, one general, finding a certain sum due, and the other special, containing findings of fact and conclusions of law, and finding the same sum due as in the other report, held that the general report might be disregarded (Niles v. Battershall, 18 Abb. 161). It is improper, however, for a referee to deliver two documents each of which purports to be the original of his report, one to each party, but it is not ground for setting aside the judgment entered on the report (Currier v. Cowles, 7 Rob. 3).

g. Time for making report.-The time for the referee to make his report may be extended by order of the court or a judge, or by consent of the parties (Thiesselin v. Rossett, 3 Abb. N. S. 54). An oral consent on the hearing to extend the time will be sufficient (Livingston v. Gidney, 25 How. 1). If sixty days elapse, without any extension of the time to file the report, and without any report being filed, either party may, before any report is filed, notify the

other, and the referee of his intention to proceed as though no reference had been ordered. If neither party takes any such action before the referee has made and delivered his report, the right to disregard the reference is waived (Mantles v. Myle, 26 How. 409; see, however, Litch v. Brotherson, 25 How. 407; 16 Abb. 384). Notice of trial at the circuit is a notification of an intention to disregard the reference (Livingston v. Gidney, 25 How. 1). If after such a notification a report is made and filed, it will be irregular, and may be set aside on motion (id.) After a report is made, although not within the time prescribed,it cannot be disregarded, nor can the parties proceed as if no reference had been ordered. A report made after the time for making it has elapsed is irregular, but it is not a nullity, and can only be got rid of by a motion to set it aside as irregular and for leave to proceed as if no reference had been ordered (id.; and see Foster v. Bryan, 16 Abb. 396; 26 How. 164; Niles v. Maynard, 28 How. 390). A referee's report was reluctantly set aside, for not having been made and delivered within sixty days from the time the action was finally submitted (Litch v. Brotherson, 25 How. 407; 16 Abb. 384). The delay of a referee in making and delivering his report cannot be considered the delay of the court (Kissam v. Hamilton, 20 How. 369). The provision requiring referees to report within sixty days does not apply to the case of a reference of a claim against an executor or administrator (Godding v. Porter, 17 Abb. 374). Nor does it apply to references pending when the law took effect (2 Rob. 708). Nor does it require that the notice to end the reference must come from the party instead of the attorney-and while the party has an attorney in the case, the party cannot give the notice (Halsey v. Carter, 6 Rob. 535). It seems the statute is directory merely, and that the court can relieve from the omission of the referee to report within sixty days.

a. Who entitled to the report. The report should be delivered to the successful party; and the other party has no right to the possession of it. If the referee deliver the report to the unsuccessful party, and he refuses to file it, the court on motion will order him to file it within a certain time; and if he does not, then, that the referee make a new report, and deliver same to the successful party (Richards v. Allen, 11 N. Y. Leg. Obs. 159).

b. Amending report.—A referee cannot, without an order of the court, amend his report after it has been signed and delivered to the prevailing party (see ante, page 413 F.) The referees may themselves move to have their report sent back to them for correction (Brittingham v. Stevens, 1 Hall, 379). When a report is sent back for correction, if the referees go beyond correcting the errors complained of on the motion to set aside the report, and open the case as to other items, they are bound to hear additional testimony if offered (Goulard v. Castillon, 12 Barb. 126). See Changing referee.

c. The court may order a referee to make a further report; and an order for a further report is not irregular for want of a specification of the points upon which a report is desired (Union Bank v. Mott, 13 Abb. 247).

d. Referees' fees.-A referee may maintain an action for his fees without any express promise to pay; and where there are several referees, each may maintain a separate action for his fees (Hinman v. Hapgood, 1 Denio, 188). The referee has a lien on the report for the amount of his fees (Howell v. Kenny 1 How. 105). And is not bound to deliver his report until his fees are paid (Ott v. Schroeppel, 3 Barb. 57).

e. The attorney in the action is not liable to the referee for his fees (Judson v. Gray, 11 N. Y. 408) unless he has promised to pay them (Judson v. Gray, 17 How. 289) or he has received them from the client to pay the referee (Lamoreaux v. Morris, 4 How. 245). Even in the latter case the attorney cannot be attached for not paying over the money so received (id.) A referee is not entitled to process for contempt against a receiver who refuses to pay his fees (Perkins v. Taylor, 19 Abb. 147).

f. Where the length of time spent by referees is disputed on the adjustment of the costs, it must be shown affirmatively by affidavit. It is immaterial what number of days were appointed for the reference, it must be shown the

referee was personally present conducting the reference on each day charged (Shults v. Whitney, 17 How. 471; 9 Abb. 71). If by consent the testimony is taken before a clerk of the referee, no fees to the referee can be allowed for the time employed in taking such testimony (id.)

a. An oral agreement made by the parties to the action, in the presence of the referee, as to his allowance for fees, and entered by him on his minutes, is an agreement in writing within the meaning of § 313 (Philbin v. Patrick, 22 How. 1). When parties agree orally that a referee may charge over $3 a day, they cannot afterward object to his charge in excess of $3 (Thurman v. Fiske, 30 How. 397).

b. The referee's fees are $3 a day (§ 313). Unless by the agreement in writing of the parties, the referee cannot charge any thing additional for office-rent or for any other matter (Harris v. Bennett, not reported). Any dispute as to the amount of the referee's fees may be settled by requiring the referee to have the same taxed (Richmond v. Hamilton, 9 Abb. 71). Where a referee failed to deliver his report within sixty days after the case was finally submitted, but swore that both parties had consented that he might take his time to report, held that he was entitled to his fees (Foster v. Bryan, 16 Abb. 396; 26 How. 164; see Time for making report).

c. Setting aside report of referees.-Where the referee fails to pass on all the issues in the action, or when he has not separately found the facts necessary to a disposition of all the issues, the proper remedy is a motion to set aside the report; such errors cannot be reached by an appeal from the judgment (Hulce v. Sherman, 13 How. 411; see ante p. 398 b.)

d. A motion to set aside the report of a referee is like a motion to set aside a verdict, and may probably be made in like cases as a motion for a new trial and is governed by the like rules (see Morgan v. Bruce, 1 Code Rep. N. S. 364). The court will set aside the report if it appears to have been, even in the slightest degree, affected by any influence exercised by the successful party (Yale v. Gwinits, 4 How. 253; Dorlon v. Lewis, 9 id. 1; and see Roosa v. Saugerties Turnpike Road Co. 12 id. 297; Van Steenburg v. Hoffman, 15 Barb. 28; Acces. Transit Co. v. Garrison, 18 How. 1). The court may also set aside the report as against evidence (Smith v. Schank, 18 Barb. 346; Strittmacher v. Salina Plank R'd Co. 34 How. 74); but a report of referees, like the verdict of a jury, is, as a general rule, conclusive in a case of conflict of evidence (Watkins v. Stevens, 4 Barb. 168; Camp v. Pulver, 5 id. 91; Spenker v. Utica R. R. Co. id. 337; Hayes v. Symonds, 9 ib. 260; Cady v. Allen, 22 id. 388; Baker v. Martin, 3 id. 634; and see 12 Johns. 219; 1 Cai. R. 160; 24 Wend. 15; 1 Cal. R. 362; Foster v. Coleman, 1 E. D. Smith, 85; Davis v. McCready, 4 id. 565; Mazette v. Harlem R. R. Co. 3 id. 98; Stuart v. Taylor, 7 How. 251; Van Ness v. Brush, 22 How. 481; Niles v. Price, 23 How. 473; Goodrich v. Thompson, 4 Rob. 75; Monell v. Marshall, 25 How. 425; Train v. Brown, 21 How. 93; Van Alstyne v. Indianapolis R. R. Co. id. 175; Quackenbush v. Ehle, 5 Barb. 469; Davis v. Allen, 3 N. Y. 168; Bearss v. Copley, 10 N. Y. 93; Watson v. Campbell, 28 Barb. 421; Sinclair v. Tallmadge, 35 Barb. 602; Hoogland v. Wright, 7 Bosw. 394) it is, therefore, like such verdict, only to be set aside where the finding is clearly against the weight of evidence, or where, upon the trial, some rule of evidence or principle of law has been violated (Green v. Brown, 3 Barb. 119; Doyle's Adm'rs v. St James' Church, 7 Wend. 178; Foster v. Coleman, 1 E. D. Smith, 85; Stuart v. Taylor, 8 How. 251; Eschbaugh v. Syracuse Distillery Co. 27 How. 125; Bearss v. Copley. 10 N. Y. 93: Woodin v. Foster, 16 Barb. 146; Brooks v. Christopher, 5 Duer, 216; Roberts v. Carter, 28 Barb. 462). The report may be set aside where an improper measure of damages was adopted (5 Duer, 535; Dean v. Roesler, i Hilton, 420); or for an unreasonable refusal to adjourn (Forbes v. Frary, 2 Johns. Cas. 224; but see Carpenter v. Haynes, 1 Code Rep. N. S. 414); or for excessive damages (Krom v. Schoonmaker, 3 Barb. 647; Eastman v. Mayor of N. Y. 5 Rob. 389); or for admitting improper evidence (Clark v. Crandall, 3 Barb. 612; see, however, Allen v. Way, 3 Code R. 243; Vallance v. King, 3

Barb. 548; Belmont v. Coleman, 1 Bosw. 188; Brown v. Colie, 1 E. D. Smith, 265; Kennys v. Richards, 11 Barb 312); but query, if the court will set aside a report because the amount found for the plaintiff exceeds that stated in his bill of particulars (12 Wend. 334, 504; Bowman v. Earle, 3 Duer, 691). The court will not interfere with the finding of a referee on a question of fact, as to which there is conflicting testimony, unless the clear weight of evidence shows that he has erred (Watson v. Campbell, 28 Barb. 421), although the court differs from the referee in the result at which he arrived (Thompson v. Wood, 1 Hilton, 93; and see Dows v. Montgomery, 5 Rob. 445).

a. Motion to set aside report of referees.-The motion is nonenumerated (Belmont v. Smith, 1 Duer, 675). It should be to the court who appointed the referees (Goulard v. Castillon, 12 Barb. 126); should be made promptly (Patterson v. Graves, 11 How. 91); before judgment (Comstock v. Rathbone, 1 Johns. 138).

b. Confirmation of report.-A report on the whole issue need not be confirmed (Renouil v. Harris, 1 Code R. 125); but all other reports should be confirmed (Griffing v. Slate, 5 How. 205; Belmont v. Smith, 1 Duer. 675; Rules 32, 33; and see Bantes v. Brady, 8 How. 216; Swarthout v. Curtis, 5 id. 198; McMahon v. Allen, 27 Barb. 335; 7 Abb. 1; Coope v. Bowles, 18 Abb. 442).

c. Judgment on referees' report.—Where a referee reports against a plaintiff on account of neglecting to appear, the judgment should be a dismissal of the complaint, not a judgment for the defendant as on the merits (Salter v. Malcolm, 1 Duer, 596). Where the referee reports in favor of the plaintiff, but states that before a final judgment can be entered an accounting must be had, whereupon the cause is ordered back to the referee to take such accounting, judgment cannot be entered until such accounting is had (McMahon v. Allen, 27 Barb. 335; see Currie v. Cowles, 7 Rob. 3; Com. B'k v. Ten Eyck, 50 Barb. 9).

d. Judgment upon the report of a referee is to be entered in form, as if pronounced by the court, before one of its justices, at special term (Hancock v. Hancock, 22 N. Y. 568).

e. If the successful party neglects or refuses to enter judgment, the other party, after requiring him to do so, may obtain an order directing him to file the report, and enter up judgment thereon; and in default thereof, giving the plaintiff leave so to do without costs (Richmond v. Hamilton, 9 Abb. 71).

f. Notice of the judgment.-Notice in writing of the entry of the judgment and a copy of the report should be served on the judgment debtor (§ 268; Staring v. Jones, 13 How. 423; Rule 32, and note to § 332, post).

9. Exceptions to report.-Exceptions to the report of a referee should be specific, and point out the error complained of (Loomis v. Loomis, 51 Barb. 257; Wheeler v. Billings, 7 Trans. App. 121; see 33 Barb. 328; 22 N. Y. 425; 6 N. Y. 233; 11 N. Y. 416; 33 N. Y. 83; see in note to § 268, ante).

h. Appeal to general term from judgment on report of referees.--The court cannot on motion set aside as erroneous a judgment entered on the report of a referee (Dana v. Howe, 13 N. Y. 308). The only mode of reviewing the rulings of the referee (Cronk v. Canfield, 31 Barb. 171, exceptas ante, 415 c. d.), or his report, is by an appeal from the judgment entered thereon (Haight v. Prince, 2 Code Rep. 94; Leggett v. Mott, 3 ib. 5; Nones v. Hope Mut. Ins. Co. ib. 192; Pepper v. Goulding, ib. 29; Crist v. Dry Dock Bank, ib. 118, 142; Enos v. Thomas, 5 How. 164; Watson v. Scriven, 7 ib. 11); whether the finding be on a question of fact or law (Cheesebrough v. Agate, 7 Abb. 32; 26 Barb. 603; see Conolly v. Conolly, 16 How. 224). For the purposes of an appeal exceptions must be served and a case made (see note to § 268, and Rules 34, 35, 36, 37). The appeal must be taken within thirty days after notice of the judgment (§ 332; Staring v. Jones, 13 How. 423); and the time to appeal cannot be extended directly (§ 405); nor should it be indirectly extended, as by setting aside a regular judgment for the purpose (Humphrey v. Chamberlain, 11 N. Y. 274; Marston v. Johnson, 13 How. 93). See in note to § 332, post.