The opinion of the court was delivered by
Brewer, J.:
A single question disposes of all these cases. They were all separately referred to three referees to hear the proofs and allegations, and report thereon. The referees made their report in each' case, finding generally in favor of the plaintiff, now defendant in error. Upon motion of of the defendant (now plaintiff in error,) the district court set aside and vacated this report. At a subsequent term the plaintiff filed the motion to vacate and modify the order, setting aside and vacating the report of the referees, and for leave to' the referees to file an amended report. This motion was overruled. Thereafter, and without any further order or direction of the court, the referees made a further and amended report, also in favor of the plaintiff, stating their findings of facts and conclusions of law separately. Upon this report judgment was entered in favor of the plaintiff, over the objection of the defendant. Is such a judgment valid? We think not. “A referee is born of an order; without it he is not.” And when he has performed the duty imposed by that order he is fimetus officio, and his acts are no more than the acts of a private individual. Up to the time his report is made and filed he can modify and change it, he can alter and amend it. But when once it has been filed, and become a record of the court, his power over it is at an end, and his relation to the case has ceased.' If *462his report is set aside and vacated the case stands in the court as before the order of reference was made, and may be tried by the court, or a jury, or referred to the same or new referees. How far the court may, after the report is filed, and before any order is made setting it aside, send it back for consideration and amendment, is not involved in this case, and we express no opinion thereon. Even in such cases the referee would have no power without the permission or direction of the court. In this case the report was set aside and vacated. The attempted trial was at an end. A jury might as well come back after a verdict had been set aside, and return an amended verdict, as a referee, after his report has been set aside, make a further and amended report. . It follows therefore that the judgment upon the second report was irregular and must be set aside. Edwards on Referees, 80, 141; Voorhis v. Voorhis, 50 Barb., 119" court="N.Y. Sup. Ct." date_filed="1867-09-02" href="https://app.midpage.ai/document/voorhis-v-voorhis-5461554?utm_source=webapp" opinion_id="5461554">50 Barb., 119; Leffler v. Field, 33 How. Pr., 385" court="N.Y. Sup. Ct." date_filed="1867-06-15" href="https://app.midpage.ai/document/leffler-v-field-5469904?utm_source=webapp" opinion_id="5469904">33 How. Pr., 385; Trufant v. Merrill, 37 How. Pr., 531" court="None" date_filed="1869-06-15" href="https://app.midpage.ai/document/trufant-v-merrill-6135610?utm_source=webapp" opinion_id="6135610">37 How. Pr., 531; Nelson v. Ingersoll, 27 How. Pr., 1; Niles v. Price, 23 How. Pr., 473" court="None" date_filed="1862-09-15" href="https://app.midpage.ai/document/niles-v-price-6144054?utm_source=webapp" opinion_id="6144054">23 How. Pr., 473; Pratt v. Stiles, 17 How. Pr., 211" court="N.Y. Sup. Ct." date_filed="1859-03-15" href="https://app.midpage.ai/document/pratt-v-stiles-5456057?utm_source=webapp" opinion_id="5456057">17 How. Pr., 211; Shearman v. Justice, 22 How. Pr., 241" court="N.Y. Sup. Ct." date_filed="1861-01-15" href="https://app.midpage.ai/document/shearman-v-justice-5469379?utm_source=webapp" opinion_id="5469379">22 How. Pr., 241.
The judgment of the district court will be reversed, and the case remanded for further proceedings.
All the Justices concurring.