h. Practice in equitable cases. The following cases illustrate the practice of referring causes equitable in their nature. Elmore v. Thomas, 7 Abb. 70; McMahon v. Allen, 10 How. 384; Stevenson v. Buxton, 15 Abb. 352. XLII. APPEAL FROM JUDGMENT. a. Within what time appeal must be taken.-The appeal must be taken within thirty days after written notice of the judgment or order shall have been given to the party appealing. Code, § 332, post; Staring v. Jones, 13 How. 423. h. Indirect extension of time.-The legislature has denied to the courts the power of relieving a party from the consequences of an omission to appeal within the period allowed by law. No attempt to effect the same thing indirectly, by affixing a new date to the judgment, will be allowed. Humphrey v. Chamberlain, 11 N. Y. (1 Kern.), 275; Bank of Monroe v. Widner, 11 Paige, 529; Marston v. Johnson, 13 How. 93, 94. c. Exceptions served and case made. Exceptions must be taken and served, and a case made for the purposes of an appeal. For the manner in which the decision of referees should be excepted to and received, how a case for that purpose should be prepared and settled, and what it should contain, see the opinion of COMSTOCK, J., in Johnson v. Whitlock, 13 N. Y. (3 Kern.), 346. d. Authority of the court on review. The court has no authority at special term, on motion, to review and set aside the judgment ordered by the referee, as erroneous. Dana v. Howe, 13 N. Y. (3 Kern.), 308. e. Appeal only method of review. The only method of reviewing a decision under the Code, after judgment, is by an appeal. Enos v. Thomas, 5 How. 364; S. C.1 Code R. N. S. 67. No review of a trial by the court or referees, either upon questions of fact or of law, can be had until after judgment, and then only upon appeal duly brought in pursuance of the 348th section of the Code. Watson v. Scriven, 7 How. 9, 11. See, also, Haight v. Prince, 2 Code R. 95; Leggett v. Mott, 3 id. 5; S. C. 4 How. 325; 2 Sandf. 720; 8 N. Y. Leg. Obs. 236; Nones v. Hope Mutual Insurance Co. 3 Code R. 192; S. Ĉ. 2 id. 101; 5 How. 157; Pepper v. Gould | ing, 3 Code R. 29; S. C. 4 How. 310. The rule is the same, whether the finding be on a question of law or fact. Cheesbrough v. Agate, 26 Barb. 603; S. C. 7 Abb. 32; Conolly v Conolly, 16 How. 224. Questions of law cannot be reviewed upon appeal, unless a case has been made and settled by the referee, containing the exceptions taken during the trial, or when proper after the trial. Hunt v. Bloomer, 13 Ñ. Y. (3 Kern.), 341; Johnson v. Whitlock, id. 344. f. Secondary evidence-power of referee.-A matter was referred, and it was attempted to be shown that certain notes had been lost; the referee having been satisfied that there was not sufficient proof of loss to admit of secondary evidence, the court, on appeal, will not say that he erred. Graham v. Chrystal, 32 How. 287; S. C. 1 Abb. N. S. 121; Aff'd, id. 2 Keyes, 21; 37 How. 279. g. Judgment on ground not resented by pleadings.-When a judgment is entered upon the report of a referee, on a ground. not presented by the pleadings, or taken on the trial, such judgment will be set aside and a new trial granted on appeal. Commercial Bank of Albany v. Ten Eyck, 50 Barb. 9. h. No exceptions taken-no review. The report of a referee must be taken as correct where neither party has excepted to his findings. In such a case they cannot object to the report, nor have it reviewed on appeal. Sutherland v. Rose, 47 Barb. 144. "to i. Example of a general exception.-An exception which is taken each and every part" of the report rendered by a referee, "both as to its findings of fact and conclusions of law," is too general. The court of appeals will not review any question arising on such an exception. Wheeler v. Billings, 38 N. Y. (11 Tiff.), 263 ; Newell v. Doty, 33 N. Y. (6 Tiff.), 83. XLIII. APPEAL-PROCEEDINGS ON. a. Irregularities of referee. - The fact that the referee received explanations from the witnesses of one party, in the absence of the other, and without his consent, is sufficient ground for setting aside his report. Dorlon v. Lewis, 9 How. 1; Yale v. Gwinits, 4 id. 253; Grah. Pr. 313, 628. b. What must be done to entitle to review. Where it is desired by a party that particular matters should be passed upon by a court of review, and the report of a referee be set aside because of their allowance or disallowance, it is not too much to require that he shall, 1st. Bring the attention of the ref Where he refused to allow depositions to be read, as to matters which should have been proved by the party before he rested. Delafield v. De Grauw, 9 Bosw. 1; S. C. Aff'd, 3 Keyes, 467; 33 How. 617 (n.) d. Question of waiver.-All the facts being before the referee, his finding on the question should be sustained, although the question was not distinctly raised by the pleadings. Van Buskirk v. Stow, 42 Barb. 9. e. Principles governing review.The same principles which govern the review of the verdict of a jury are applicable to the review of a judgment rendered by a referee or a single judge. Adee v. Demorest, 54 Barb. 434. f. Conflict of testimony.-Even on material points, the conclusion of the referee is final as to questions of fact. Monell v. Marshall, 25 How. 425; Porter v. Ruckman, 38 N. Y. (11 Tiff.), 210; S. O. 6 Trans. App. 65. g. Improper admission of testimony. - Judgment will not be reversed, because improper testimony has been admitted in a case where it is plain to the court that such testimony has not influenced the result. Lowery v. Steward, 3 Bosw. 506; S. C. Aff'd, 25 Ñ. Y. (11 Smith), 239. h. All issues not disposed of.-If the facts found authorize his decision, a judgment will not be reversed for the reason that his report does not pass upon and dispose of all the issues, where there is nothing to warrant a finding of any issue not passed on in favor of the appellant. Alger v. Raymond, 7 Bosw. 418; S. C. Aff'd, 25 How. 593 (n.) i. Proper exception.-An exception on the trial before a referee must be specific and point out the error complained of. Loomis v. Loomis, 51 Barb. 257. See, also, Tyler v. Willis, 33 id. 328; S. C. 12 Abb. 465, sub nom. Tyler v. Whitney; Ingersoll v. Bostwick, 22 N. Y. (8 Smith), 425; Jones v. Osgood, 6 N. Y. (2 Seld.), 233; Caldwell v. Murphy, 11 N. Y. (1 Kern.), 416. In case of the refusal of a referee to find as requested, in order to make an exception thereto available, the party who takes it must state and bring before the referee the proposition of fact or law which he desires to have him pass upon. Brooks v. Van Every, 3 Keyes, 27. j. Exception abandoned. Exceptions not noticed in counsel's points, and upon which no argument is made, are to be deemed waived. Sutherland v. Rose, 47 Barb. 144, 150; Cumings v. Morris, 3 Bosw. 560; S. C. Aff'd, 25 N. Y. (11 Smith, 625, sub nom. Cummings v. Morris; Brown v. Colie, 1 E. D. Smith, 265. k. When new trial granted.-Where there is ordinarily fair evidence to support it, the finding of fact by a referee, like the verdict of a jury, will not be disturbed on appeal. But where the report is clearly against the body of the evidence, although there may be some evidence to support it, it may and will in such a case be set aside. Thompson v. Menck, 22 How. 431, 435; Strittmacher v. Salina and Central Square Plank Road Co. 34 id. 74. 1. Weight of evidence must be clearly against finding of a referee, in order that the reversal of a judgment, founded on his report, may be warranted. Mead v. Shepard, 54 Barb. 474; New York Car Oil Co. v. Richmond, 6 Bosw. 214; Lewis v. Greider, 49 Barb. 606, 640. Aleish, 21 How. 283. n. Presumption of the court. Where there is evidence sufficient to sustain the report, but the fact established by such evidence is not expressly found by the referee in such report, and the party preparing the case has not prepared any findings upon such fact, justice requires that it should be presumed, in support of the judgment, that the referee in truth found the fact in accordance with the evidence. Sinclair v. Tallmadge, 35 Barb. 603. See Manley v. Insurance Company of North America, 1 Lans. 20; Hannay v. Pell, 3 E. D. Smith, 432; Griffin v. Marquardt, 17 N. Y. (3 Smith), 28. o. Controlling statement of factsWhere the statement contained in the report of the facts found by the referee, differs from that inserted by him in the case, on settling it, under §§ 268, 272 of the Code, the true statement of the facts, as actually found by him, will be deemed to be contained in the latter statement; and if his conclusions are erroneous, assuming the latter statement to be correct, a new trial must be granted. The statements contained in the report will not be resorted to, to impute thereby a meaning to the language of the findings of the fact, in the case as settled, which would not be given to it according to its natural construction. Hartman v. Proudfit, 6 Bosw. 191. p. Erroneous evidence admittednew trial.-Where the referee has admitted erroneous evidence, which bears with distinctness and force upon the question at issue, a new trial must be granted. This is the rule, notwithstanding there may be sufficient unobjectionable evidence to sustain his conclusion. Williams v. Fitch, 18 N. Y. (4 Smith), 546. This case distinctly overrules Kemeys v. Richards, 11 Barb. 314. p. Law and fact. - Upon appeal, the general term will review the referee's findings of law, and his findings of fact will also be reviewed, whether expressly found, or implied from the silence of his report on the subject. Manley v. Insurance Company of North America, 1 Lans. 20. XLIV. APPEAL-DATE OF ISSUE. a. Date of issue on calendar.When a judgment, founded upon the report of a referee, is appealed from, the date of issue on the general term calendar must be the day on which the report is filed. Gould v. Chapin, 5 How. 358. See, also, Graham's Pr. 2d ed. 671, 672. XLV. APPEAL-STAY OF PROCEEDINGS ON. a. Stay does not prevent special | proceedings. The only proceedings upon which a stay operates, are those in the suit. Thus, where an appeal from a judgment in an action to try the title to a public office is taken, this does not prevent the party who, by the judgment appealed from, was declared to be entitled to the office, from instituting special proceedings to compel the delivery of books and papers to him. Welch v. Cook, 7 How. 282. See, also, Wilkes v. Henry, 4 Sandf. Ch. 390. In Bulkeley v. Keteltas, 3 Sandf. 740; S. C. 1 Code R. N. S. 119, it is held, that it is not a proceeding in this court, which is stayed by an appeal from the judgment to the court of appeals, where the successful party files with the county clerk a transcript of the docket of a judgment entered in the superior court, and dockets the same with such clerk. The question is ably considered by WALWORTH, Ch., in Hart v. Mayor, etc. of Albany, 3 Paige, 381. express authorities in support of this principle An appeal will not have a retrospective effect, so that a lien created by the levy will be discharged, where the execution was issued and the levy made before the appeal was taken. Matter of Berry, 26 Barb. 55; Rathbone v. Morris, 9 Abb. 213. Stricker v. Wakeman, 13 id. 85, holds that in such a case, where the appeal is taken in good faith, and ample security is offered, the court may, in its discretion, grant such an order. b. Execution is not superseded by stay of proceedings. When an execuhas been duly issued, and a levy made under it, an appeal perfected so as to stay proceedings, under § 339 of the Code, does not operate to supersede the execution, but does stay all further proceedings on it. The old practice relating to an appeal from a decree in chancery, is still followed in this respect. Cook v. Dickerson, 2 Sandf. 391; Clark v. Clark, 7 Paige, 607, and Burr v. Burr, 10 id. 169, are XLVI. APPEAL TO a. Reversing question of fact.-The general disposition of the courts is to sustain the referee in his findings of fact. The question of the court to determine is, are they so certain that the referee was in error upon the facts, that they will assume to reverse his judgment? If it appears clearly that he erred in deciding the facts, the court is bound to "reverse his judgment." Westerlo v. De Witt, 36 N. Y. (9 Tiff.), 345; S. C. 2 Trans. App. 332; Rev'g S. C. 35 Barb. 215 (on the merits); Ball v. Loomis, 29 N. Y. (2 Tiff.), 412; Petersen v. Rawson, 34 N. Y. (7 Tiff.), 370. See Borst v. Spelman, 4 N. Y. (4 Comst.), 284; Reaff'd, Reformed Protestant Dutch Church of Westfield v. Brown, 24 How. 76; Marshall V. Smith, 20 N. Y. (6 Smith), 251. If there is no competent evidence to sustain conclusions of fact arrived at by referee, or if the undisputed evidence establishes the contrary, it then becomes a question of law, and the courts are at liberty to examine it. Fellows v. Northrup, 39 N. Y. (12 Tiff.), 119; Pratt v. Foote, 9 N. Y. (5 Seld.), 463; Farmers' Bank c. Order overruling demurrer, of itself no stay.-An appeal from such an order does not of itself, operate as a stay of the proceedings. Christy v. Libby, 3 Abb. N. S. 423; Hicks v. Smith, 4 Abb. 285; Ferry v. Bank of Central New York, 9 id. 100; Genin v. Chadsey, 12 id. 69. d. Mandamus.-Complying with all the requirements of § 334 of the Code, operates to stay all proceedings upon the judgment. A peremptory mandamus was accordingly set aside for irregularity, where it had been issued after the perfecting of an appeal to the court of appeals. People ex rel Thomas v. Commissioners of Highways of Milton, 25 How. 257. e. Supplementary proceedings.Proceedings supplementary to execution are suspended, where an appeal is taken from the judgment, and the necessary security given to procure a stay. Cowdrey v. Carpenter, 2 Rob. 601; S. C. 17 Abb. 107. See, also, § 348 and notes, page post. b. Must be exceptions to warrant appeal.-There is no authority for reviewing on appeal, a decision to which no exception has been taken. On the contrary, it is Isish, 12 How. plainly prohibited. Brewer v. 481; Hunt v. Bloomer, id. 567; S. C. 13 N. Y. (3 Kern.), 341; Mills v. Thursby, 12 How. 418; Johnson v. Whitlock, id. 571; S. C. 18 N. Y. (3 Kern.), 344. The exceptions should be separate from the case. Westcott v. Thompson, 16 N. Y. (2 Smith), 613; Mills v. Thursby, supra. See, also, on this subject, Morris v. Husson, 8 N. Y. (4 Seld.), 204. c. Report no substitute for case.The court of appeals will never accept the report of a referee, together with all the evidence taken before him, as a substitute for a case. Nor is it sufficient that the judgment roll contains a statement of the referee's conclusions of fact and law. Bissel v. Hamlin, 20 N. Y. (6 Smith), 519; S. C. 13 Abb. 23. See, also, Bissell v. Pearse, 21 How. 130, 134; Smith v. Grant, 15 N. Y. (1 Smith), 590; Ferguson v. Hamilton, 35 Barb. 427. g. Presumption in favor of report. If it cannot be made out from the findings whether the judgment is right or wrong, it will be presumed to be correct, and will be affirmed. Rice v. Isham, 1 Keyes, 47. h. A case must be made.-The only manner of reviewing the final conclusion of a referee, is upon a case made in the manner prescribed by the Code. This is true, how ever irregular the action of the referee may have been in the conduct of the trial. Goodpro-year v. Bishop, 2 Keyes, 651. d. Hearing, not re-trial. - Where a matter is referred to a referee to take an account in order that the court may be enabled to render judgment, a hearing on his report is not a re-trial, but a review only of the ceedings before such referee. Griffin v. Cranston, 5 Bosw. 658. e. Negative evidence insufficient in case of fraud.- Where the referee, in the matter of an assignment for the benefit of cred-| itors, reports as a conclusion of law that the assignment was a valid one, on the ground that no evidence had been offered showing the existence of individual debts which were charged to have been preferred, held, that such negative evidence was insufficient to overcome the presumption of fraud, and that the report should be set aside. Hurlbert v. Dean, 2 Keyes, 97. f. Nonsuit.-It is only in cases where the error is very evident, that the court of appeals will reverse the judgment because the referee refused to nonsuit. Metcalf v. Mattisons, 32 N. Y. (5 Tiff.), 464. XLVII. WHAT THE CASE a. Form.-The nature of a case, and the the manner in which it should be made up, is plainly set forth in Bissell v. Hamlin, 20 N. Y. (6 Smith), 519. See Watson v. Barker, 16 Abb. 203. b. Court will assume findings in accordance with the evidence.-The court can not go into an examination to see whether the findings of the referee are sustained by the testimony, where the evidence offered before him is not set forth in the case. They will assume that the findings are true, and in accordance with the evidence. Lamb v. Grover, 47 Barb. 319; Frost v. Smith, 7 Bosw. 108; Manley v. Insurance Company of North America, 1 Lans. 20. c. Case omitting referee's findings. In Watson v. Barker, 16 Abb. 203, the court i. Simple question of fact not open for review. In the court of appeals the report of a referee, so far as it involves questions of fact, is not open for review. Chamberlain v. Prior, 2 Keyes, 539, 541. j. When judgment cannot be disturbed.-If, on a comparison of the judgment with the facts found, it is seen to be in conformity with them, it cannot be disturbed. Farnham v. Hotchkiss, 2 Keyes, 9. See Cheesebrough v. Taylor, 12 Abb. 227. k. Requisites for review.-The court of appeals will not review the decision of a referee when the facts are not found, nor his legal conclusions stated and properly excepted to. Stratton v. Cornfield, 2 Keyes, 55. See, also, Mosher v. Hotchkiss, id. 589; S. C. 3 id. 161. See Kirby v. Fitzpatrick, 18 N. Y. (4 Smith), 484. ON APPEAL MUST CONTAIN. at general term allowed the argument to be suspended, in order that the referee's findings might be supplied, where the case submitted entirely omitted them. In Bissel v. Hamlin, 20 N. Y. (6 Smith), 519; S. C. 13 Abb. 23; Rogers v. Beard, 20 How. 98, 282, the court of appeals dismissed an appeal, for a like defect. See, also, Warren v. Warren, 22 How. 142. See Matthews v. Mayor, etc. of New York, 14 Abb. 209. They should be inserted separately from the judgment roll. Bissel v Pearse, 21 How. 134. See Ferguson v. Hamilton, 35 Barb. 427. d. Evidence.-If the appellant desires to review the law from the facts found by the referee, the evidence must be inserted in the case. Ferguson v. Hamilton, 35 Barb. 427. See Bissel v. Pearse, 21 How. 134. XLVIII. SETTLEMENT OF CASE. a. Settling case after judgment on verdict. The entry of judgment on a verdict, whether it is intended as security or not, forms no bar to a motion for the settlement of the case, and for a new trial on such case. Tucker v. White, 27 How. 97; S. C. 28 id. 78, note by F. E. CORNWELL, Esq.; Lane v. Bailey, 1 Abb. N. S. 407; S. C. 45 Barb. 119, sub nom. Lane v. Huddleston, 30 How. 76. b. Judgment entered absolutely.A case and exceptions cannot be annexed to the judgment roll for the purpose of review, after judgment has been entered absolutely, except by special order. Anderson v. Dickie, 26 How. 199; S. C. 17 Abb. 83; 1 Rob. 700. See, also, Lynde v. Cowenhoven, 4 How 327; Church v. Rhodes, 6 id. 281; Renouil v. Harris, 2 Sandf. 641; S. C. 1 Code R. 125; 2 id. 71. c. Three referees - one absent.-A reference was had before three referees, from whose judgment an appeal was taken. One of the three referees was absent when the case was settled, and he had no notice of such settlement: held, that the case must be sent back for re-settlement. Fielden v. Lahens, 14 Abb. 48. d. Rule in settlement of case.-Upon the settlement of a case, a party cannot have inserted in it a statement that all the evidence given upon the trial is contained in it, unless the object is, that a new trial may be moved for on the ground of a misdirection, which was not the subject of an exception. Magnus v. Trischet, 2 Abb. N. S. 175. e. Mandamus proper remedy to compel settlement of case.-A referee may be compelled by mandamus to settle a case a d exceptions, and to settle it correctly. But before the writ will be issued to compel the settlement in a particular way, it must be made to appear that it will then be according to the facts. People v. Baker, 35 Barb. 105, 109; S. C. 14 Abb. 19, sub nom. People el rel. Adams v. Baker; Delavan v. Boardman, 5 Wend. 132, and note; Sikes v. Ransom, 6 Johns. 279. The writ will be absolutely defective if it demands too much. Semble, that the writ may be amended after return and demurrer. People v. Baker, 35 Barb. 105, 109; S. C. 14 Abb. 19. f. Supreme court rules.-See, as to the making, serving, and settling cases, etc new Rules 41, 42, 43, 44 and 45, post. CHAPTER VI. Manner of entering judgment. SECTION 274. Judgment may be for or against any of the parties. 275. The relief to be awarded to the plaintiff. 276. Rate of damages, where damages are recoverable. 277. Judgment in actions for recovery of personal property. 278. Judgment upon issue of law or of fact to be upon direction of single judge, 279. 280. Judgment to be entered into judgment book. 281. Judgment roll. 282. Judgment, in what cases and how to be docketed. 274. [230.] (Am'd 1849, 1852, 1862.) Judgment may be for or gainst any of the parties. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties on each side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. The court may also dismiss the complaint with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against the defendant or defendants served. In an action brought by or against a married woman, judgment may be given against her as well for costs as for damages, or both for such costs and for such damages, in the same manner as against other persons, to be levied and collected of her separate estate and not otherwise. And in any proceeding to enforce such judgment, the supreme court shall have jurisdiction, though the amount be less than one hundred dollars. I. JUDGMENT FOR AND AGAINST VARIOUS PARTIES. a. General.-Where there cannot be a joint judgment for damages against all the defendants, separate judgments may be pronounced. The power to do so is in express |