trial. A verbal agreement, entered by the referee on his minutes, was, however, held valid, in Philbin vs. Patrick, 22 How., 1.

In the absence of such a stipulation, the statutory fee cannot be exceeded. Nor can the referee charge for services performed by a third person in his absence, or make any charge for adjournment of a meeting, when no business is actually done. The proper form for objecting to any overcharge, is to bring up the account for taxation, when any overcharge will be disallowed. Schultz vs. Whitney, 17 How., 471; 9 Abb., 71; Richmond vs. Hamilton, 9 Abb., 71, note.

In case of such an overcharge, a motion to set aside the report will not be admissible. If the prevailing party do not take up the report, the unsuccessful one should move to compel him to file it, and enter up judgment, or, in default, that he be at liberty to do so himself. Rich mond vs. Hamilton, supra.

If the report be taken up by the wrong party, he will be ordered to file it, or, in default, that the referee deliver a new report, on payment of any fees remaining due. Richards vs. Allen, 11 L. O., 159.

The referee cannot, of course, be required to deliver up his report, until his proper fees are paid, the remedy of the party disputing them lying in an application for taxation, as above.

But if he do so without payment, the attorney is not personally liable. Lamoreux vs. Morris, 4 How., 245; Howell vs. Kinney, 1 How., 105; Judson vs. Gray, 1 Kern., 408. But, if the attorney, for consideration passing between him and the party, agree to advance them, the referee may then maintain an action. Judson vs. Gray, 17 How., 289.

Under the last amendment of section 273 (1862), the referee may forfeit his fees, unless he deliver his report, within sixty days from the time the action shall be finally submitted.

§ 236. Report and its Incidents.

The hearing being complete, its result is embodied in the form of a report by the referee, or by two at the least of the referees, if three are appointed. If any specific time be imposed by the court, within which the report must be made, the direction must of course be complied with, or, if necessary, an extension obtained in due course.

And such a time is now in fact imposed by section 273 (amendment of 1862). Unless the court shall otherwise order, the referee must now make and deliver his report, within sixty days from the time the action shall be finally submitted. In default thereof, he himself forfeits his fees, and the action is to proceed as though no reference had been ordered, Unless therefore the successful party is prepared to abandon the whole proceeding, he must, in the event of necessity arising, apply for

and obtain an order extending the referee's time to report. Or, where both parties concur, the same may be done by stipulation, or agreement to waive the objection. Or the referee himself, if he show good reason for his delay, may apply for an extension. The period allowed is, however, amply sufficient to meet all usual contingencies.

The report must of course be signed, that being essential to its valid ity. See incidentally, Thomas vs. Tanner, 14 How., 426 (428).

And, when made, it cannot be properly delivered to any other than the successful party; and, if so delivered, and not duly filed by the party who has taken it up, a fresh report may be ordered. See Richards vs. Allen, 11 L. O., 159.

After delivery to the party, the report cannot properly be altered by the referee, under any circumstances. See Shearman vs. Justice, 22 How., 241.

(a.) FORM OF REPORT.

As regards a reference of the whole issue, the form of the report is distinctly prescribed by section 272. The referee, in making it, must "state the facts found, and the conclusions of law separately," and, having so stated them, he must give his decision. When the reference is special, the report must, of course, follow the directions, and satisfy the terms of the order.

In Johnson vs. Whitlock, 3 Kern., 344; 12 How., 571, it was considered that the decision of the referee might be in the same general form as that of a judge, under the practice as then existent, and that there was no necessity of making the statement of facts found and conclusions of law, above required on the face of the report. It was sufficient if it were made afterwards, in settling the case for the purpose of review, if desired. The same conclusions are adhered to in Otis vs. Spencer, 16 N. Y., 610; 15 How., 425; 6 Abb., 127.

These dicta are in a great measure "obiter," and the ground on which they then stood is now substantially removed, by the amendment of section 268, in 1860, requiring the same species of statement from a judge, in giving his decision.

Even before that amendment, the doctrine there held was essentially contrary to a number of cases, directly deciding that a report made under the Code, must conform in the first instance to the actual terms of the section, and must make upon its face the statements so required.

Rule 13 of the Superior Court, requiring a special report to be obtained, on a motion for a rehearing, was passed, before the clause above referred to was introduced into the section, and, as regards reports on references of the whole issue, may be considered as obsolete, review by way of rehearing being abolished.

The following cases, decided prior to that introduction, anticipate it, and decide that a report, even prior to 1851, was to be drawn in this manner. Doke vs. Peek, 1 C. R., 54; Mucklethwaite vs. Weiser, 1 C. R., 61; Deming vs. Post, 1 C. R., 121; Van Steenburgh vs. Hoffman, 6 How., 492.

The following hold the same doctrine, as applicable to the section, since this requisition was introduced in 1851. Church vs. Erben, 4 Sandf., 691; Roberts vs. Carter, 28 Barb., 462; 17 How., 524; Rogers vs. Beard, 20 How., 282. See also prior but imperfect report, 20 How., 98. See likewise in the Court of Appeals, Mills vs. Thursby (No. 11), 12 How., 417. And the requisitions of rule 32 are positive upon the subject. See likewise Snook vs. Fries, 19 Barb., 313; Peck vs. Yorks, 14 How., 416.

The referee should report on all the material issues joined by the pleadings, on which evidence is offered. Van Steenburgh vs. Hoffman, 6 How., 492. But he need not do so, on issues on which no evidence is given, or which are in fact reported upon, by necessary implication. Patterson vs. Graves, 11 How., 91; Ingraham vs. Gilbert, 20 Barb., 151.

But it will neither be necessary nor proper, for him to report the mere evidence, instead of the facts found. Patterson vs. Graves, supra. See also Doke vs. Peek, 1 C. R., 54; Dorr vs. Noxon, 5 How., 29. Nor will an opinion, not finding the facts, but merely referring to them argumentatively, satisfy the requirements of the Code. Mills vs. Thursby (No. 11), 12 How., 417.

Where an accounting was directed, as part of the general reference, it has been held that a mere finding of facts found and of an amount due, as on an ordinary issue, was insufficient. The referee should have shown also that he had duly taken the account. See Kapp vs. Barthan, 1 E. D. Smith, 622.

Where a referee is merely directed to report the facts, it will be wrong for him to find the testimony also. Dorr vs. Noxon, supra. But where he is instructed to take proof as to a specific matter, and report the same, together with the testimony, it will be proper for him to make a special finding of the facts, reporting the testimony also. Goodridge vs. New, 18 How., 189.

As to the import and force of the word "duly," when employed by a referee in his report, see Farmers' and Mechanics' Bank vs. Empire Stone Dressing Company, 10 Abb., 47; 6 Bosw., 275.

(b.) CORRECTION OR SETTING ASIDE OF REPORT ON MOTION.

If the report, when made, be defective, by reason of an omission to comply with any of the foregoing requirements, or otherwise in matter of form, the proper course will be to apply to the court at once, for an

order requiring the defect to be corrected. Snook vs. Fries, 19 Barb., 313; Peck vs. Yorks, 14 How., 416; Hulce vs. Sherman, 13 How., 411 (412); Van Steenburgh vs. Hoffman, 6 How., 492; Church vs. Erben, 4 Sandf., 691; Renouil vs. Harris, 2 Sandf., 641; 1 C. R., 125; Goulard vs. Castillon, 12 Barb., 126; Ingraham vs. Gilbert, 20 Barb., 151 (152); Parsons vs. Suydam, 3 E. D. Smith, 276; Bishop vs. Main, 17 How., 162; Murray vs. Barney, 34 Barb., 336 (343); Grant vs. Morse, 22 N. Y., 323. See also, as to procuring a specific finding, New York Car Oil Company vs. Richmond, 6 Bosw., 213; 19 How., 505; 10 Abb., 185.

See also, as to an order to set aside a collateral ruling, on the ground of irregularity, Billings vs. Baker, 6 Abb., 213; 15 How., 525; 28 Barb., 343. See, as to a correction of a report, and the consequent entry of judgment, by striking out a direction, inserted after delivery to the party, Shearman vs. Justice, 22 How., 241.

The motion for this purpose may be grounded on the report itself, and the previous proceedings, if the defect be patent, or any extraneous matter necessary to show its existence, may be supplied by affidavit. The defect itself, and that it works some prejudice to the applicant, must, of course, be clearly shown.

A motion to set aside a report on the ground of irregularity, must be made with due diligence, or the defect may be waived. Paterson vs. Graves, 11 How., 91.

An order for a further report, should specify the points upon which it is required. If it omit to do so, it will not be irregular, however, especially if the necessary information can be obtained from the affidavits. Union Bank vs. Mott, 13 Abb., 247.

(c.) CONCLUSIVENESS OF DECISION.

It is superabundantly settled that the decision of a referee, on a question of facts, stands on the same footing as that of a judge, or as the verdict of a jury, and is equally conclusive, if there be any evidence to support it; and that, where no error in law has been committed, it will not be set aside, however greatly the court above may differ with him in opinion, on the question of fact. See Watkins vs. Stevens, 4 Barb., 168; Green vs. Brown, 3 Barb., 119; Baker vs. Martin, 3 Barb., 634; Spencer vs. The Utica and Schenectady Railroad Company, 5 Barb., 337; Camp vs. Pulver, ibid., 91; Quackenbush vs. Ehle, ibid., 469; Durkee vs. Mott, 8 Barb., 423, and Hayes vs. Symonds, 9 Barb., 260; Luding ton vs. Taft, 10 Barb., 447; Kemeys vs. Richards, 11 Barb., 312; Orchard vs. Cross, 12 Barb., 294; Lockwood vs. Thorne, 12 Barb., 487; Shuart vs. Taylor, 7 How., 251; Borst vs. Spelman, 4 Comst., 284; Morris vs. Husson, 4 Seld., 204; Bearss vs. Capley, 6 Seld., 93;

Dorlon vs. Lewis, 9 How., 1; Doubleday vs. Newton, 9 How., 71; Vansteenburgh vs. Hoffman, 15 Barb., 28; Wooden vs. Foster, 16 Barb., 146; Foster vs. Coleman, 1 E. D. Smith, 85; Mazelli vs. New York and Harlem Railroad Company, 3 E. D. Smith, 98; Lutz vs. Ey, ibid., 621; 3 Abb., 475; Fish vs. Wood, 4 E. D. Smith, 327; Davis vs. McCready, ibid., 565; Thompson vs. Wood, 1 Hilt., 93; Pearson vs. Fiske, 2 Hilt., 146; Woodruff vs. Commercial Mutual Insurance Company, ibid., 122; Western vs. Genesee Mutual Insurance Company, 2 Kern., 258 (264); Griscom vs. Mayor of New York, 2 Kern., 586; Davis vs. Allen, 3 Comst., 168; Esterly vs. Cole, ibid., 502; Cady vs. Allen, 22 Barb., 388; Murfey vs. Brace, 23 Barb., 561; Barth vs. Walther, 4 Duer, 228 (230); Brooks vs. Christopher, 5 Duer, 216; Watson vs. Campbell, 28 Barb., 421; Roberts vs. Carter, 28 Barb., 462; 17 How., 524; Sheldon vs. Wood, 2 Bosw., 267; Hoagland vs. Wight, 20 How., 70; Cady vs. Allen, 18 N. Y., 573; Chamberlain vs. Townsend, 26 Barb., 611; 7 Abb., 31; Hall vs. Morrison, 3 Bosw., 520; Forward vs. Harris, 30 Barb., 338; New York Car Oil Company vs. Richmond, 6 Bosw., 213; 19 How., 505; 10 Abb., 185; Smith vs. Paton, 6 Bosw., 145; Murray vs. Barney, 34 Barb., 336; Brown vs. Brown, 34 Barb., 533; Train vs. Brown, 21 How., 93; 12 Abb., 217; Van Alstyne vs. Indianapolis, Pittsburgh and Cleveland Railroad Company, 34 Barb., 28; 21 How., 175; Van Ness vs. Bush, 22 How., 481; 14 Abb., 33. See likewise, as to a question of fact referred to him, Demarest vs. Daig, 11 Abb., 9.

Nor will a report be set aside, for unimportant mistakes. The error complained of must be a clear and decisive error, by which the party complaining has been injured. Ludington vs. Taft, 10 Barb., 447. And a report may be upheld, even though some testimony has been improperly admitted, if, excluding that testimony, enough remains to sustain it. Kemeys vs. Richards, 11 Barb., 312.

But, like the verdict of a jury, a report palpably against evidence, which is full, and in no way contradicted or discredited, will be set aside. Smith vs. Schanck, 18 Barb., 344. And so, if it be grounded on testimony palpably insufficient or improbable, a new trial should be granted. Kennedy vs. New York and Harlem Railroad Company, 3 Duer, 659.

So likewise, where the referee has omitted to pass upon facts in evidence before him, in misapprehension of a rule of law. Allen vs. Devlin, 6 Bosw., 1.

Or, where the conclusions drawn by him are erroneous, as inconsistent with his subsequent specification of facts found, on settling a case for review. Hartman vs. Proudfit, 6 Bosw., 191.

And a report should be set aside, where the finding is clearly against