(2) And either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may, at any time within ten days after notice of the judgment, or within such time as may be prescribed by the rules of the court, make a case or exceptions in like manner as upon a trial by jury, except that the judge in settling the case must briefly specify the facts found by him, and his conclusions of law. (3) But the questions, whether of fact or of law, arising upon the trial, can only be reviewed in the manner prescribed by this section, the questions of law in every stage of the appeal, and the questions of fact upon the appeal to the general term of the same court, as prescribed in section three hundred and forty-eight. (4) No finding of facts by the general term shall be required for the purpose of review in the court of appeals, and if the judg ment be reversed at the general term, it shall not be deemed to have been reversed on questions of fact unless so stated in the judgment of reversal; and in that case the question whether the judgment should have been reversed either upon questions of fact or law, shall be open to review in the court of appeals. (5) And for the purposes of an appeal from a judgment rendered on the report of a referee, or the decision of a judge on a trial without a jury, it shall not be necessary to insert at large in the case the findings of fact or conclusions of law of such judge or referee, or the exceptions thereto filed, but if the same appear as part of the judgment-roll, they may be referred to and used on the argument of the appeal with the same effect as though inserted in the case. (6) The provisions of this section, and also of section two hundred and seventy-two, as they are hereby amended, shall apply to appeals now pending as well as to those hereafter brought. Note to subdivision 1. a. Exceptions.-" The exceptions which may be. and must be made within ten days after notice of the judgment, are those, and only those, which under the former system of practice were made to the ruling of the court after the evidence was closed and before the jury retired. This clause of the section does not authorize exceptions to be taken after judgment to matters arising during the trial, and where there is an opportunity to except at the time the adverse decision is made. Where a party can except on a point ruled against him as the trial is proceeding, but omits to do so, he cannot afterward except" (Hunt v. Bloomer, 13 N. Y. 341; 12 How. 567; Johnson v. Whitlock, 13 N. Y. 344; 12 How. 571). b. Unless exceptions are taken, the court on appeal cannot review (Mayor of N. Y. v. Erben, 24 How. 358; Douglass v. Day, 3 Keyes, 434; Bissell v. Studley, id. 213; Enos v. Eigenbrodt, 32 N. Y. 444; Weed v. Harlem R. R. Co. 29 N. Y. 616) in an action to foreclose a mortgage. The trial was by the court without a jury. On the trial the plaintiff moved the cause on the pleadings and on the bond and mortgage, the subject-matter of the action. He waived proof of the matters set up in the answer, claiming that they constituted no defense. The judge so decided, and judgment accordingly. The record did not disclose any exception to the decision. On appeal to the general term, the judgment was affirmed. The defendant appealed to the court of appeals. On motion the appeal was dismissed on the ground that as no exceptions had been taken there was no question raised for review (Hunt v. Bloomer, 13 N. Y. 341). a. It is said (Mayor of N. Y. v. Erben, 24 How. 358; Hatch v. Fogerty, 7 Rob. 488); that no exception to a finding of fact is necessary. But at most this can mean only that no such exception is necessary where the finding is upon conflicting evidence. For when the finding of fact is contrary to what the undisputed evidence requires, a legal error is committed, and is reviewable in the court of appeals (Draper v. Stovenel, 7 Trans. App. 9). But to authorize such review, the finding must be excepted to; thus, where the court below, contrary to the undisputed evidence, or without any evidence, found as a fact the fraudulent concealment of the issuing an execution; the court of appeals held that the finding was an error of law, but refused relief because the finding had not been excepted to (Brush v. Lee, 1 Trans. App. 66). Where the evidence showed that the cause of action was barred by a recovery in a former suit between the same parties the finding of fact by the judge that the prior recovery was not a bar, was held to be reviewable in the court of appeals (Draper v. Stovenel, 7 Trans. App. 9). b. An exception to a finding mixed of law and fact does not raise the question whether the fact found is sustained by the evidence (The People v. Albright, 14 Abb. 305). Where the trial is by the court, an exception to the final decision of the judge, as well upon the facts as the law of the case, that the plaintiff was entitled to recover * * only raises the question whether, upon the facts as found, the law has been properly decided (Belknap v. Sealey, 14 N. Y. 148. See Rule 36). c. A general exception to a report of a referee "and to each and every part thereof, both as to findings of fact and conclusions of law" is too general to be made available on appeal in the court of appeals (Wheeler v. Billings, 7 Trans. App. 121). So an exception to "each and every one of the decisions and rulings against plaintiff separately"-held insufficient (Newell v. Doty, 33 N. Y. 83), but it has been said that a general statement at the end of the conclusions of law in the case that the party excepts to each of them separately is all that is necessary (Hatch v. Fogerty, 7 Rob. 488; see Exceptions to Report of Referees, post). d. Notice of judgment.-See note to § 332, post. Mel e. Extending time to serve exceptions.-Exceptions to conclusions of law must be served within the time prescribed, otherwise they are too late (Hatch v. Fogerty, 7 Rob. 488). But the court has the power to allow exceptions to be filed, nunc pro tunc, after the ten days allowed therefor have expired (Sheldon v. Wood, 14 How. 18; Coe v. Coe, 14 Abb. 87; Bortle v. len, id. 228); leave given to make a case, does not extend the right to take exceptions beyond the ten days (Beach v. Gregory, 3 Abb. 78; Hatch v. Fogerty, 7 Rob. 488; see Salls v. Butler, 27 How. 133); and the case or exceptions will not usually be resettled so as to allow exceptions to be inserted which were not taken within that time, and especially not if an argument on the case or exceptions has been had (Beach v. Raymond, 1 Hilton, 201). After the decision of an appeal by the court in banc, the unsuccessful party cannot be allowed, for the purpose of an appeal to the court of appeals, to insert exceptions not appearing in the case upon which the appeal to the general term has been decided (id.) Note to subdivision 2. ɑ. Making a case.-"In order to review the judgment after trial by the court, a case must always be made. In settling this, the code imperatively requires a [separate] statement of the facts found by the judge and his conclusions of law [7 How. 273]. The party who prepares the case should insert this statement, which, like any other part of the case, will be subject to amendment by the other party, and settlement by the judge. If it be desired to review any conclusion of fact, the case will contain the evidence bearing upon that conclusion. It will also contain the exceptions taken during the trial, and those taken after the judgment, to the final conclusions of law. The case, if served within the ten days, will be of itself a compliance with the first clause of the section, and no other exceptions will be required to satisfy that clause [7 Rob. 488]. If not served within ten days, then a formal exception must have been made and served within that time, as the authority for inserting it in the case afterward prepared; and any exception which appears in the case as settled, will be assumed to have been made in due time" (Hunt v. Bloomer, 13 N. Y. 341; Johnson v. Whitlock, id. 344). b. The requirement that the judge or referee "must briefly specify the facts found by him and his conclusions of law," means nothing more than that his findings be inserted in the case in such form as to allow the review of the question decided by him. It does not authorize a review of the case, nor making new findings of law or fact (Leffler v. Field, 33 How. 385). Note to subdivision 4. c. The provision in this subdivision that a judgment reversed at general term "shall not be deemed to have been reversed on questions of fact, unless so stated in the judgment of reversal" does not apply to orders made on special motion (Williams v. Hernon, 3 Keyes, 99; 33 How. 243); but it applies to an appeal from an order granting a new trial (East River B'k. v. Kennedy, 4 Keyes, 279). Where the appeal is from an order refusing a new trial, questions of law only can arise. Where the reversal at general term is stated to be made on questions of fact and law, the court of appeals determines whether the reversal was correct on either ground (Coleman v. Second Av. R. R. Co. 6 Trans. App. 146; 38 N. Y. 202; Marco v. Liverpool Ins. Co. 35 N. Y. 664). But if the judgment of reversal does not state it was on a question of fact, it must be deemed to be on a question of law (Van Blarcom v. B'dway Bank, 5 Trans. App. 136; Lobdell v. Lobdell, 2 id. 366; Baldwin v. Van Deusen, 37 N. Y. 487; Shibley v. Angle, id. 631). d. Findings of fact at general term.-Where the court, at general term, establish findings of fact different from the facts found by the court or referee who tried the cause, such finding of facts should be made part of the record (Smith v. Grant, 17 How. 381). Where such a case is sent back to the general term from the court of appeals for resettlement, the general term has no power to send it to the special term or referee for resettlement and restatement of the facts found by the judge or referee. The court of appeals should be furnished with the same facts as those on which the general term based its judgment (id.) Where the facts as found at the general term have not been stated in the record in pursuance of rule 38, the general term in its discretion has the right and will allow such settlement upon terms (id.) § 269. (Am'd 1849, 1851.) Proceedings upon judgment on issue of law. On a judgment for the plaintiff upon an issue of law, the plaintiff may proceed in the manner prescribed by the first two subdivisions of section two hundred and forty-six, upon the failure of the defendant to answer, where the summons was personally CHAPTER V. Trial by Referees. SECTION 270. All issues referable by consent. 271. When a reference may be compulsorily ordered. § 270. All issues referable by consent. All or any of the issues in the action, whether of fact or of law, or both, may be referred, upon the written consent of the parties. a. Consent to refer.—An attorney retained to defend an action has an implied authority to consent to a reference (Smith v. Troup, 18 Law Jour. Rep. 290, C. P.) The consent should be "written." It may be written by the parties or their attorneys, or by the clerk entering their consent in the minutes, or by the referees in their minutes, such consent being made before them (Leaycroft v. Fowler, 7 How. 259; Waterman v. Waterman, 37 How. 36). But the necessity of a written consent to refer may be waived, and such waiver may be by parol, or by the parties proceeding with the reference (Keator v. Ulster Plank Road Co. 7 How. 41; see note to 3 Abb. 171). b. In an action referable only by consent, a stipulation was signed by the attorneys of both parties, referring the cause to M., and an order was made on defendant's motion, and on filing the stipulation, referring it to I,-held that the plaintiff had a right to disregard the order entirely, and proceed as if no consent to any reference had been given (Haner v. Bliss, 7 How. 246). c. A county court may when consent of the parties order a reference of an issue of fact, in an action brought into such court from a justice's court (Hyland v. Loomis, 48 Barb. 126). $271. (Am'd 1849.) ordered. When reference may be compulsorily Where the parties do not consent, the court may upon the application of either, or of its own motion, except where the investigation will require the decision of difficult questions of law, direct a reference in the following cases: 1. Where the trial of an issue of fact shall require the exam ination of a long account on either side; in which case, the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein; or, 2. Where the taking of an account shall be necessary for the information of the court, before judgment, or for carrying a judgment or order into effect; or, 3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the action. i Compulsory reference, in what cases. 4. Examination of long account.-The practice of referring issues which require the examination of long accounts has prevailed from time immemorial, and is consistent with the provision in the constitution retaining a trial by jury in all cases in which it had been theretofore used (Van Marter v. Hotchkiss, 1 Keyes, 585). The power to refer actions involving the examination of a long account is permissive merely (Goodyear v. Brooks, 4 Rob. 682), there is no absolute right to a reference merely because a long account is involved (Wheeler v. Falconer, 7 Rob. 45). The code requires (§ 271, subd. 2) that neither party should be deprived of the benefit of a trial by jury, as to matters not involved in the account and embraced in the issues (id.) The granting an order of reference on the ground of a long account, where other issues are involved, is not a matter of discretion (id.) b. The revised statutes provided that whenever a cause should be at issue, and it should appear that the trial of the same would require the examination of a long account on either side, the court might, on the application of either party, or without such application, order such cause to be referred to three impartial and competent persons (2 R. S. 384, § 39). Under this provision, it was held, that a reference was strictly proper only in the cases of accounts existing between the parties; and that where there was no account, in the ordinary acceptation of the term, the cause could not be referred, although there might be many items of damage (6 Hill, 373). It was always regarded as a proceeding applicable only to what were formerly known as actions of assumpsit, or debt on simple contract, although it was held possible that a reference might be ordered in what was formerly known as an action of Covenant (19 Wend. 108; 9 id. 480; 6 id. 503). An action upon a policy of insurance against fire was allowed to be referred, where the controversy between the parties related solely to items of injury, and the amount of loss sustained by the assured (1 Hall, 560). A reference is now refused in such an action, where the defense charges a fraud on the part of the insured (Levy v. Brooklyn Fire Ins. Co. 25 Wend. 687; Freeman v. Atlantic Mut. Ins. Co. 13 Abb. 124; Batchelor v. Albany Ins. Co. 6 Abb. N. Y. 240; 37 How. 399; but see contra, Lewis v. Irving Fire Ins. Co. 15 Abb. 303, note). c. The class of actions in which the court can order the whole action to be tried by the referee, without the consent of either party, is enlarged by the code, but the fact which warrants the exercise of the power is the same now as when the revised statutes alone gave the authority to refer (McCullough v. Brodie, 13 How. 346; 6 Duer, 659; Cameron v. Freeman, 10 Abb. 332; 18 How. 310). d. A reference can only be compelled where the court can see from the pleadings and proceedings that the trial must necessarily involve the examination of a long account on either side (Keeler v. Poughkeepsie Plank Road Co. 10 How. 11: Dickinson v. Mitchell, 19 Abb. 286; Sharp v. Mayor of N. Y. 18 |