35 A.D. 379 | N.Y. App. Div. | 1898
It appears upon the face of the order appealed from that the motion was dismissed for the lack of power to entertain it. There is nothing contained in the papers before us to show that the court,
It would seem from the decision of the court below that it was of the opinion that the application to send the case back to the referee for resettlement should be made to the Appellate Division.1 It is difficult to see where the Appellate Division gets any authority to entertain any such motion as an original application. The jurisdiction of the Appellate Division is appellate except in those cases in which original jurisdiction is expressly conferred upon it by statute. Such jurisdiction does not extend to the ordinary motions made in the progress of an action. While the court at Special Term cannot compel a referee to settle a case in a particular way, under proper circumstances it has the right to send it back to such referee for resettlement.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.