The ground upon which a reargument is asked is that the court in making its decision erroneously stated the facts and based its determination .upon a cause of action not tried before the referee. There is submitted in connection with the motion an affidavit of the *573defendant Hatch which tends to establish that the case was tried and disposed of by the referee upon a concession by the plaintiff that the cause of action set forth in the complaint was for a rescission of the contract, and that this was the only question litigated- upon the trial and presentéd to the referee for his determination by common consent of the parties.
Assuming this to be true, it can-not be made the basis for granting .a reargument of the case. It is not pretended that the record submitted upon the appeal contains such matter, nor is there anything from which such condition can be spelled out from all that appears therein. It cannot be expected that the court can or will dispose of questions which the record does not disclose. Controversies are to be decided based upon the facts appearing in the record, and not upon matters extrinsic whether they exist or not. Besides, it is denied in the opposing affidavit that the ground relied upon was conceded to be the only issue presented to the referee, and it is claimed therein that the plaintiff sought recovery solely upon the ground of a breach of contract. The utter futility, therefore, of attempting to save rights which a party claims exist, which are not made to appear in the record submitted upon the appeal, is clearly apparent. If this motion should now be granted for this reason it is evident that the court would have no record before it upon which it could base a determination upon this question, and before the defendant could bring the question properly to the attention of the court it would require a new case to be made and settled. And were this practice once to obtain it would produce hopeless confusion, and neither courts nor litigants could ever be certain that any litigation was at an end even though apparently finally decided.
So far as the motion seeks to raise other questions it is enough to say that they were all examined and a conclusion reached adverse to the contention of the defendant.
The motion for a reargument should be -denied, with ten dollars ■costs and disbursements.
Present—Van Brunt, P. J., O’Brien, Ingraham, McLaughlin and Hatch, JJ.
Motion denied, with ten dollars costs and disbursements.