Opinion
April, 1909.
Guggenheimer, Untermyer Marshall, for plaintiff.
Jay Candler, for defendant.
The issues were referred to a referee to hear, try and determine. The case was tried and the referee reported in favor of the plaintiff, but no direction for the payment of costs is contained either in his report and findings or in the interlocutory judgment confirming such report and findings. The plaintiff now applies for final judgment in a form which contains a provision for the payment of costs. The referee had the discretion to allow or disallow costs. Since he did not award any, the court at Special Term has no power to do so. Sabater v. Sabater, 7 A.D. 70. See Stevens v. Weiss, 25 Misc. 457. In motions of this character the court cannot reverse, add to or subtract from the decision made by the referee, and no provision not authorized by the referee can be inserted in the judgment applied for. Jones v. Jones, 71 Hun, 519, 524; Sabater v. Sabater, supra; Goldner v. Goldner, 49 A.D. 395, 399; Code Civ. Pro., § 1774.
The provision as to costs has, therefore, been stricken out and as thus corrected the final judgment has been signed.
Ordered accordingly.