Clark v. Willoughby

1 Barb. Ch. 68 | New York Court of Chancery | 1845

The Chancellor.

It was clearly irregular to attempt to raise the same questions, by new exceptions to the master's amended report, which had been considered and decided by the court upon the exceptions to the original report. Where a report is sent back to be amended, upon the hearing of exceptions taken to the same, it is not open for review generally by the •master; unless the court expressly authorizes him to review it generally, or the nature and scope of the exceptions allowed necessarily embrace the whole subject matter of the account originally taken by the master. The usual order nisi, to confirm, which is entered upon the filing of the original report, becomes absolute at the expiration of eight days, except as to the matters embraced in the exceptions. The decretal order made upon the exceptions, therefore, need not direct the report to be confirmed as to those parts thereof which are not directed to be altered or reconsidered by the master. The master was bound, in this case, to charge the defendant with the amount embraced in the first exception to the amended report; or rather he was not at liberty to alter the original report in that respect. And the disallowance of interest, as claimed by the second exception, would have been directly in the face of the decretal order, upon the exceptions; which order directed it to be allowed by the master. No exceptions can be taken to a report because the master has refused to disobey the directions contained in the order of reference, under which he is directed to act. A party cannot, therefore, by excepting to a report which has been properly made, pursuant to the instructions of the court, as contained in the order of reference, indirectly review the decision of the court in giving such instructions. If he is dissatisfied with the order, he must either apply for a re-hearing directly; or he must appeal from the decision, to the proper appellate tribunal, within the time allowed by law for appealing. (See Brown v. Be Tastet, Jac. Rep. 293; East India Comp. v. Keighley, 4 Mad. Rep. 17.).

I think the vice chancellor was also right in directing the exceptions to be taken off the files; instead of subjecting the complainant to the expense and delay of setting them down for argument, and having them overruled at the hearing. The usual course, upon, an original report, unquestionably is to argue the exceptions to the same; even where the adverse party insists that the part of the report excepted to is in compliance with the express directions of the court, as contained in the decree or order of reference under which the report was made. But it is certainly irregular for a party to put in the same exception to an amended report which has already been overruled as an exception to the original report. For the part of the amended report thus excepted to has already been confirmed, by the dis-allowance of the exception to the original report The exceptions to a report only operate as an enlargement of the order nisi to confirm the report; and the disallowance of the exceptions has the effect of a confirmation of the part of the report embraced in such exceptions. (2 Smith’s Chan. Pr. 346. 2 Dan. Chan. Pr. 959.)

The order appealed from must be affirmed, with costs.