The reversal of the judgment upon the referee's report and the granting of a new trial did not of itself vacate the order of reference. It stands unless provision is made to the contrary, or the order is vacated upon motion. This has been decided in numerous cases in the Supreme Court. The practice has been to construe the order granting a new trial as directing such new trial before the same referee, unless otherwise specially provided. Therefore, even if the powers of the referee were exhausted when he filed his report, they were revived by the order to try the case.
In Develin v. The Mayor (54 How. 11), it was stated by the chief judge that the reversal of the judgment on the referee's report did not vacate the order of reference, and the appeal was dismissed upon the ground that the order was not appealable. The same disposition should be made of this appeal, and it should be dismissed, with costs.
All concur, except MILLER, J., not voting.
Appeal dismissed.