An application made on behalf of the appellant for resettlement requested that the order granted upon the respondent’s motion be so resettled as to include an affidavit of appellant’s manager in opposition to the motion and to exclude from the order the transcript of the testimony and exhibits which were the record before the referee, because such testimony and exhibits were not before the court.
We find from the affidavits and from the nature of the motion that the testimony taken before the referee and the exhibits thereto annexed, which were filed in the office of the clerk of the county of New York, should have been recited in the order confirming the referee’s report.
The facts therein recited are the basis for the findings which he made. The court could not consider a determination as to whether or not the referee’s report was correct or erroneous unless such matters as were therein contained were before it. The Special Term has declared that such matters were considered by it and we *576may not here determine that issue adversely to the ruling of the judge who made the order.
If an appeal be taken from the determination of the referee and the order of the Special Term confirming his determination, the testimony and the exhibits must be included within the record. The affidavit in opposition to resettlement, which the court omitted from its recitals, appears to have been submitted on the return day of the settlement and should have been included in the recitals of the resettled order.
The order appealed from should be modified so as to permit the resettlement of such order, so as to include the affidavit of Alfred Green, and as so modified affirmed, without costs.
Finch, P. J., Merrell, Martin and Sherman, JJ., concur.
Order modified so as to permit the resettled order to include the affidavit of Mr. Green, and as so modified affirmed, without costs. Settle order on notice.