Opinion
March, 1915.
Order affirmed, with costs. All concurred, except Kruse, P.J., who dissented in a memorandum.
I think the order of reference was one to hear and determine. The referee heard and decided the matter, making findings of fact and conclusions of law to which exceptions were filed, but omitted formally to direct judgment to be entered. Thereupon, a motion to confirm the report was made at Special Term, but the Special Term, instead of treating the application as a motion, made findings and decided the matter directly contrary to the referee's decision and judgment was entered thereupon. I think the only order the Special Term could make was to send the matter back to the referee to make a formal decision and direct judgment to be entered thereupon, as the Code provides. ( Smith v. Geiger, 202 N.Y. 306.) While the motion to confirm the report of the referee was entirely unnecessary, I think the making of the motion did not have the effect to change the reference from one to hear and determine to one to take proof and report with the opinion of the referee. The question of a want of power to decide the matter anew by the Special Term was specifically raised by exceptions filed to the decision of the Special Term. I think the judgment should be reversed and the matter sent back to the referee.