The denial by the surrogate of the appellant’s application for a decree confirming the report of the referee was error. More than five months had elapsed after the submission of the report to the surrogate before his decree rejecting it was made. Section 2546 of the Code of Civil Procedure, under which the reference was made, provides that “ Unless a referee’s report is passed upon and confirmed, approved, modified or rejected by a surrogate within ninety days after it has been submitted to him, it shall be deemed to have been confirmed as of course, and a decree to that effect may be entered by any party interested in the proceeding upon two days’ notice.” The language of the statute is clear and explicit, and leaves no room for interpretation. The legal effect of the omission of the surrogate for ninety days to pass upon the report is that it thereby becomes confirmed, and a party has thereafter a legal right to a decree of confirmation. That this was the intention of the Legislature is apparent, not only from the language of the section, but by comparing it with the previous provisions of this section. Prior to 1895, section 2546 of the Code of Civil Procedure contained no direction in respect to the time within which the referee’s report should be passed upon by the surrogate. In that year the section was amended by adding the words “A referee’s report must be passed upon and confirmed, approved, modified or rejected by a surrogate within sixty days after it has been submitted to him.” (Laws of 1895, chap. 796.) The section thus remained until 1899, when it was amendéd as first-above quoted. The legislative intent *340in the amendment of 1899 is obvious. Prior to that time no consequence was attached by the section to the failure of the surrogate to comply with the. direction to pass upon the report within sixty days, and no procedure was provided in the event of non-compliance. The statute as it then existed was directory merely. The amendment enlarged the time of the surrogate to pass upon the report from sixty days to ninety days, and for the first time provided, as a . consequence of his omission, that “ it shall be deemed to have been confirmed as of course.” By this amendment the statute which was before directory was clearly made mandatory.
The omission of the appellant to move immediately after the expiration of the ninety days for a confirmation of the report did not constitute a waiver of his right. By operation of the statute the report- becomes confirmed- after the lapse of ninety days, and no election is required by the party in whose favor the report is made.: He may at any time thereafter move for a decree of confirmation.
■ Hor can the filing by the trustee of the supplemental account, after the decree of the surrogate removing him from his trust, be construed to be a waiver. -He had instituted proceedings in the Surrogate’s Court for-a final judicial settlement of his accounts prior to the proceeding .to remove him, and such proceedings■ for an accounting were pending at the time of the surrogate’s decree, when" he asked leave to file a supplemental account and therein stated the fact that a decree had been made by the surrogate for his removal. ■The filing of this account, supplemental to the one filed eighteen months before in the pending proceeding for an accounting, was ■quite proper and cannot be deemed to. be such an acquiescence in -and submission to the surrogate’s decree as would bar an appeal therefrom, which was in fact duly taken by him, nor preclude him . from applying for a decree of confirmation of the referee’s report.
The inability of the surrogate, by reason of serious illness, to perform his duties during a part of the five months, after the submission to him of the report of the referee, did not suspend the operation of the statute.. If the want of a provision in the statute for such an exigency be a defect, the answer is, as was said by the court in Fifth Avenue Bank v. Colgate (120 N. Y. 394): “The court cannot correct errors or cure supposed defects in legislation.”
The order appealed from should be reversed, with costs.
*341From what has been said it follows that the decree of the surrogate, adjudging that the confirmation of the report of the referee be denied and that the trustee be removed from.his trust, is erroneous and should be vacated and set aside by the surrogate.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion to enter decree confirming report of referee granted, and decree removing trustee vacated.