Morss agt. Hasbrouck.

vision, Mr. Throop in his note says: "The second sentence" (the one just quoted) "is new. It was added to prohibit, by an express enactment, the absurd, inconvenient and unnecessary practice of entering up a judgment for the original amount, when a judgment appealed from is affirmed."

By the light of this section the language of section 1332 is more easily understood. The judgment or order of the general term, when it affirms one previously rendered or made, must be simply an affirmance, and it cannot, "expressly and in terms," render or make a new one to the same effect as the old. As therefore the judgment or order of affirmance does not, "expressly and in terms," render or make a new judgment or order to the same effect as the one which it affirmed, it becomes necessary on appeal to the court of appeals, in order to secure the payment of the original judgment, that "the undertaking must be the same as if the judgment or order from which the appeal is so taken was of the same effect as the judgment or order so affirmed.”

Second. Mr. Throop, in his note to section 1332, has left us in no doubt as to his meaning by the insertion of such new section. He says: "The rule has been very obscure upon the point which this section aims to settle, but it is believed that this section is in accordance with the practical construction of the provisions of the original statute. See Hinckley agt. Kreitz (58 N. Y., 583) where it was held the sureties in the undertaking given upon appeal to the court of appeals stand in the relation of sureties to those in the undertaking given on appeal to the general term. This obscurity was, doubtless, one reason why double judgments were entered as stated in the note to section 1317 (ante)."

This is a plain and explicit declaration by the author of the section that it was inserted to remove all obscurity as to the liability of the sureties upon the appeal to the court of appeals. That court had held, in the case to which he refers, that those sureties occupied to the signers of the undertaking, on the appeal to the general term, the position of sureties.

Morss agt. Hasbrouck.

Still, as without the provisions of the new section, there might be some doubt as to the extent of the liability by them assumed, he has therein and thereby enacted, that the undertaking shall in express words provide for the payment of the original judgment, if the judgment of the general term, affirming such judgment, be itself affirmed by the judgment or order of the court of last resort. Section 1332 does not, as the counsel for the appellant argued, declare the effect of the undertaking to be given, but to remove all doubt as to such effect it prescribes the form of the instrument.

Having reached the conclusion that the undertaking of the appellant is defective the remaining question is, shall his counsel have the opportunity to review the order which this opinion indicates must be made? On the question involved in the motion the judge who has heard it entertains no doubt. He knows, however, the fallibility of human judgment and the importance of having all doubt solved upon a point of practice of continual occurrence. As the judgment entered is doubtless secure by actual levy upon personal property, and is also a lien upon real estate, upon stipulating that such levy shall continue and that no effort will, during the pending of the appeal from the order now to be made, be used to remove such lien from the real estate, an opportunity to review will be given by staying its operation until the next general term of this court to be held in the third department, and if the appeal to be taken is then heard then a further stay is granted until the decision of the general term upon such appeal.

As no costs were either asked or given upon the previous motion the present one, which presents one of the points then decided and nothing more, must be granted, with ten dollars costs.

Devlin agt. The Mayor.

N. Y. COMMON PLEAS.

MARY DEVLIN, administratrix, appellant, agt. THE MAYOR, &c., respondent.

Reference Court no power to increase number of referees after order of reference made to one referee.

Where an order of reference to a single referee has been affirmed by the general term, and also by the court of appeals, and the trial of the case has devolved upon the referee thus appointed, the court has no power subsequently to appoint two additional referees, unless upon a new state of facts (Per VAN BRUNT, J., reversing, S. C., 62 How., 163, 165). DALY, C. J., dissenting, held, that the order appointing two more referees should be affirmed; that the fact that the single referee to whom the cause had been referred had been sworn, and the case opened before him, does not present any difficulty.

General Term, June, 1882.

Before DALY, C. J., and VAN BRUNT, J.

T. C. Cronin, for plaintiff.

W. C. Bartlett, for defendant.

VAN BRUNT, J.-I entirely fail to comprehend from what source the special term of this court acquires the power to vacate the order of reference in this action to a single referee which has been affirmed by the general term of this court and also by the court of appeals. If it has not been settled in this case that it was proper to order the issues joined herein to be tried and determined before a single referee, then no question can ever be determined in an action, even by the court of appeals, which may not be reversed by the court at special term. The identical application which has resulted in the order appealed from was made at the time the original order

Devlin agt. The Mayor.

was made, and it was denied, and an order of reference made to a single referee, and this decision has been affirmed by both the general term and the court of appeals.

If it was improper to make the order of reference to one referee, the general term should have reversed the order of reference upon that ground and not affirmed it, as was done. By the order of reference made and properly made, as has been decided by the court of appeals-the power of this court upon the question of reference was exhausted. The trial of the cause had devolved upon the referee thus appointed, and this court had no power to divest him of the functions with which he had been clothed, except upon the discovery of new facts unknown at the time of his appointment and which made it improper for the referee to act.

The Code provides that the court may refer a case to one or three referees. After the court has referred a cause to either one or three referees, and that action has been sustained upon appeal as proper, neither the same judge who made the original order nor any other judge holding the court has any power to change, alter or modify such order, especially in a respect which was before the court upon the original application. An order of reference once made, the power of the court is exhausted, unless it is invoked upon a new state of facts. As well might the judge at special term have-after it had been decided by the special term, by the general term and the court of appeals that an order of reference to one referee was proper-granted a motion that the cause should be tried by a jury, as to decide that the cause should be tried by three referees instead of one. But it may be urged that the order appealed from does not change the original order of reference, but simply adds something to it.

The fallacy of this position seems to be very apparent. By the original order of reference it was determined that the case was a proper one to refer to one referee, and by the order in question it is decided that it was not proper to refer the cause to one referee, but that there should have been three, which

Devlin agt. The Mayor.

is the granting of a motion previously denied, which denial had been affirmed by the highest court, and not a single new fact presented. The order also seems to me entirely unwarranted in attempting to appoint what is called therein additional referees, and also providing that under certain contingencies that the additional referees may be discharged. I can find no authority for the appointment of additional referees. If a reference is made to three, they are all referees having the same powers, the same rights; there is no distinction between them; the decision of the majority is conclusive and there is no provision in the Code that under any circumstances two may be discharged, and the case decided by one.

As the orders of reference now stand, the original referee seems to be a sort of presiding justice at this trial, and his associates are to be his humble advisors - a condition of things utterly at variance with the provisions of the Code.

The referee had been sworn, the case opened and witnesses sworn, before this motion to increase the number of referees was made. If, at this stage of the case, such a motion can be made, then the court could grant such an application at any time before the final decision by the referee.

It does seem that where a party has succeeded in having a certain mode of trial declared to be proper by all the appellate courts, and has noticed his cause for trial, has opened the case before the tribunal declared to be a proper one, and has sworn his witness, he should be allowed to proceed to the determination of his rights without any further interference upon the part of the court.

The order appealed from should be reversed, with costs.

DALY, C. J. (dissenting). — I see no ground for reversing the order I have previously given in the opinion which is printed in this case-the reasons why this cause should be tried before three referees in addition to which I may add that this is an action against the corporation of the city, for the receiving of a very large amount, $70,000, which embraces