The motion presents a close question, but I shall hold:
First. That the sixty days do not commence to run until the cause is submitted.
Second. When briefs are to be submitted there is no submission of the cases until the time to hand in briefs is passed.
Third. That the referee has power to enlarge the time for the submission of briefs, as he would have the power to postpone the argument of the cause beyond the day fixed, if the cause was to be submitted on oral argument. This is an inherent right or power of the referee, and unless his discretion in this *74particular is abused, the court will not interfere with his action.
Fourth. Having the report ready and tendering it, on payment of his fees, within the sixty days is sufficient (Little agt. Lynch, 34 Hum, 396; Geib agt. Topping, 83 N. Y., 46). These decisions are contrary to Phillips agt. Carman (23 Hun, 160), but they are more recent. It is true the latter case was affirmed by the court of appeals (84 N. Y, 650), but the affirmance may have been on some other ground (see 34 Hun, 400); and indeed we must so suppose, for in the case above cited from 83 New York, 46, the same court expressly decided contrary to it.
Motion denied, without costs. The defendants must stipulate to enable plaintiff to review the judgment.