First National Bank v. Levy

The report of the referee is sufficiently full to permit judgment to be entered thereon determining the issues in the case. The action was in equity and as the referee did not award or deny costs, no costs can be adjudged in favor of or against either party. The referee has made a certificate in which he states that he intended to award costs to plaintiff, but by inadvertence omitted to do so.

We think the practice of sending a report back to the referee to supply alleged omissions ought not to be encouraged, and if allowed in any case it should be only to supply some merely technical or clerical omission; not to reinvest that officer with judicial functions touching the case theretofore submitted for his decision. The necessity and propriety of such action should be clear.

We refused to send back the report in Gardiner v. Schwab (34 Hun, 582). Here the plaintiff did not submit a request for an *463award of costs. If this had been done possibly the defendant would have presented objections to the award proper for the consideration of the referee. In view of the certificate of the referee, if these objections should now be presented, it is difficult to see that they would be considered at their proper force.

The order should be reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. *

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.