2 Keyes 55 | NY | 1865
This case is not in a condition to be reviewed in this court. The appeal is from a judgment entered in an action tried by a referee, and there are no findings of fact or of law. In Otis v. Spencer (16 N. Y., 610), it was distinctly held that these must be contained in a case settled by the referee, and that this court could not look elsewhere for them; but here, neither in a case nor in the referee’s reports are they specified. In the first of these the referee determines certain-legal questions arising upon facts that he states appeared in evidence before him, without finding that the facts existed. In the second, he reports the preceding had on a subsequent accounting, having come to the conclusion that the defendant should account to the plaintiff, as trustee, under the will of their grandfather. An account is stated, but without the facts being found upon which the statement is predicated.
It is clear, therefore, as the appeal presents the case, there can be no review, in this court, of the judgment. We cannot review the decision of a referee where the facts are not found, nor his legal conclusions stated and properly excepted to. An extraordinary course was pursued on the trial, in stopping midway to take the opinion of the referee on the legal aspects of the case, and subsequently stating an account as upon a reference for that special purpose; but, notwithstanding this, there would have been no difficulty in having a review of the decision here. Within the t-ime allowed by the Code, a case should have been .made and settled by the
All concur.
Judgment affirmed.
