No case was made by the defendants for the purpose of reviewing the trial before the ref*88eree, and no exceptions were taken to his report. Ueither the statute authorizing the reference, nor the Oode, in terms prescribes the practice upon a review of the trial before the referee; and the proceedings must be made to conform as near as maybe to the established practice in other cases. The statute regulating the trial declares that the same proceedings shall be had in all respects, the referees shall have the same powers, be entitled to the same compensation, and subject to the same control as if the reference had been made in an action in which the court might direct a reference. (2 Rev. Stat., 89, § 37.) The proceeding is substantially a suit, being a legal proceeding in a court to ascertain the amount due, to enforce its collection. (Robert a. Ditmas, 7 Wend., 522.) It is not commenced by the service of a summons, and is not an ordinary proceeding for the enforcement of a right, and is not, therefore, technically an action within the provision and definition of the Code, §§ 2, 127. It is, nevertheless, a judicial proceeding, terminating in a judgment. (People a. County Judge of Rensselaer County, 13 How. Pr., 398.)
Since the enactment authorizing and regulating the reference of claims against the estate of deceased persons, the judicial system has been changed and a new code of practice adopted, much more complicated and intricate in its machinery and workings than the former, and it is not easy, in all cases, to adapt the new system and forms of procedure to the remedies secured by special statutes.
Under the former practice, less technical than the present, the process for a review of the trial and the correction of the errors of the referee in cases like the present, was quite simple. The statute provides that the court may set aside the report of the referees or appoint others in their place, and may confirm such report and adjudge costs, as in actions against executors. (2 Rev. Stat., supra.) The order to confirm the report, and for judgment, was an order of course and nisi, and only became absolute after the quarto die post; and judgment was entered upon it in the same manner and with the like effect as upon the verdict of a jury. (Burhans a. Burhans, 10 Wend., 601; Woodin a. Bagley, 13 Ib., 453.*) Within the four days the de*89feated party might move for a new trial, as upon a trial at circuit, and if the argument could not be had within the four days, proceedings upon the report might be stayed, as in other cases. The report was confirmed, unless the unsuccessful party, upon a case, and in the usual way, asked for and obtained a new trial.
Under the Code, common orders are abolished, and if an order of confirmation and for judgment upon the report is necessary, it must be made at special term upon a special application. (Code, §§ 278, 401.)
The Code gives an appeal from the judgment as the only method of reviewing a trial, except in the very few cases specially provided for, in which a motion for a new trial may be made. As this proceeding is not a civil action within the Code, it is not within the provisions of that act, and the form of procedure must be regulated by analogy to its provisions rather than by the terms of the act.* The appeals given by the Code are confined to judgments and orders in civil actions. (Code, § 323.) And an appeal from a judgment on the report of a referee in a case like this, would not lie except upon a very liberal interpretation of the statute. There only two ways that occur to me in which the report of the referee can be reviewed upon a reference to settle claims made against executors and administrators. One is by an appeal to the general term directly from the judgment on the report of the referee, and upon a case or cases, or case and exceptions, making a part of the record (Code, §§ 268, 272, 348; Dana a. Howe, 13 N. Y., 306; Johnson a. Whitlock, Ib., 344); and the other is by a motion for a new trial at the special term, by way of opposing the motion to confirm the report. In the latter case the party would have the same opportunity to move that was given under the former practice after the rule for .interlocutory judgment *90was entered; and upon cause shown, time for preparing the case and exceptions would he given, and the motion to confirm the report and for judgment suspended until the hearing of the motion for a new trial. In this, as in the other mode of procedure suggested, a case or exceptions must he prepared by the party aggrieved by the report. This appears to me the most natural and simple way of bringing the case before the court.
n.—May, 1862. Appeal from order confirming the report of the referee. The plaintiff afterwards made a motion at the Oneida special term, in November, 1861, for an order confirming the report of the referee, and for judgment, which motion was granted. But leave was given to the defendants to. make" a case or exceptions.But it is not necessary for us to settle the practice. It is enough that the judgment given at special term was unauthorized by law. A judgment under the statute, when given, must be upon the-report of the referee confirmed by the court, not by the court notwithstanding or against the report of the referee. (2 Rev. Stat., supra.) The court may only set aside the report of the referees or appoint other referees in their stead, if the report is erroneous or unsatisfactory, or it may confirm the report, and in that case adjudge costs as in actions against executors. If the report is set aside, a new trial before the same or other referees follows of course. The report being set aside, there is nothing upon which to base a judgment for costs. It is a statutory proceeding, and the only authority for a judgment is the report of the referee, which is subject to examination by the court; but the court cannot, upon setting aside the report, virtually displace the referee by itself pronouncing the judgment which the referee should have given. The judgment is not simply irregular, but erroneous, and must be reversed with costs; and as the practice is unsettled, the proceedings are remitted to the special term, to the end that either party may apply for such relief as they may be advised they are entitled to.
The defendants appealed from the order confirming the report of the referee, and giving the plaintiff leave to enter judgment on the report, to the general term of the court. Joseph Mason, for the appellants. J. Sterling Smith, for the respondent.Held, by the Court,* that the justice, at special term, could not do otherwise than confirm the report of the referee and give the plaintiff leave to enter judgment thereon. Also, that the defendants could appeal from the judgment to the general term; and that it was proper, or at least matter of discretion, for the justice at special term to grant leave to the defendants to except to the report of the referee, and make a case and exceptions that should form part of the judgment-roll, so that they could review the decisions of the referee by an appeal from the judgment.
The court affirmed the special-term order, with $10 costs, and gave the defendants leave to file exceptions to the report of the referee, nunc pro tunc, and time to make a case and exceptions.
And see Boyd a. Bigelow, 14 How. Pr., 511.
The question whether this proceeding is an action or not has been mooted, in reference to the right to costs. In Lansing a. Cole (Code R., 246), and Munson a. Howell (12 Abbotts’ Pr., 77), it was held that it is an action within 2 Rev. Stat., 89, § 41. The contrary was held in Van Stickler a. Graham (7 How. Pr., 208), and Avery a. Smith (9 Ib., 349), but the result of these latter cases was disapproved in Linn a. Clow (14 Ib., 508).
As to the tests by which it is to be distinguished from an arbitration, see Akely a. Akely, 17 How. Pr., 21.
Consult, also, Tracy a. Suydam, 30 Barb., 110.
Present, Balcom, Campbell, Parker, and Mason, JJ.