The question is, whether the defendant is entitled to have a motion for a new trial founded upon a case involving questions of fact alone, heard and decided at a special term. The twenty-fourth rule of the court is decisive of this question. It provides that such a case “ shall only be heard on appeal at a general term.”
The defendant, however, insists that he has a right to such a rehearing by the last clause of the 272d section of the code; and that the court have no power, by a general rule, to deprive him of a right conferred by the statute. He argues that by virtue of the 384th section of the code, appeals are confined to questions of law only; and that unless he can have a rehearing otherwise than on an appeal, he is of necessity deprived of all remedy in a case where he can show a clear mistake of fact on the part of the referees.
It is undoubtedly true, that if the right to a review of the report of referees at a special term be given by the statute, no rule, of court can take it away. But I do not think that a hearing at special term is necessary to authorize the granting of a new trial for an error of fact.
1st. I am of opinion that errors of fact in a report of referees may be reviewed and corrected on appeal. An appeal from a judgment entered on the report of referees, is not within the provisions of chapters 3 and 4, of the 11th title of the Code. Sections 348 and 349 authorize no appeal except from a "judgment” or “ an order” “ entered upon the direction of a single judge.” A judgment upon the report of referees is not so entered. It is entered, of course, and without any order of -a judge. The distinction is clearly taken in the 278th section of the code. That section provides that judgment upon an issue of law or of fact, &c. shall in the first instance he entered upon the direction of a single judge, or *312“ reports of referees, subject to review at the general term, &c.” Justice Hand, in Van Valkenburg v. Allendorf 4 Howard 39, reconsidered his decision in Deming v. Post, (Code Rep. 121,) and held that judgment should be entered on a report of referees, without any direction of a judge; so, too, the last clause of rule 24 provides that “ on filing a report of referees, made on the whole issue, judgment may be entered as a matter of course.” The appeal from a judgment entered on the report of referees is given by other sections. By the 272d section, it is provided that the report of referees on the whole issue shall stand as the decision of the court, that judgment may be entered thereon in the same manner as if the action had been tried by the court; and their decision may be excepted to and reviewed in like manner. How, then, is the judgment, in a cause tried by the court, reviewed ? Being entered on the direction of a single judge (§ 278,) it is reviewed by appeal. But, although it is reviewed in “ like manner,” it by no means follows that questions of fact cannot be reviewed. The phrase, “ in like manner,” merely means, in this connection, by appeal. Again, the very provision in section 268, to which reference is made, and to which the practice of reviewing the decision of referees is assimilated, expressly contemplates a “ review upon the evidence appearing on the trial either of the questions of fact or of law.” If I am right in the foregoing conclusions, an appeal in the case of a referee’s report, not being within the cases provided for in section 348, is not within its limitation to questions of law. An appeal from a judgment, in a cause tried by the court, however, is within the cases provided for in section 348. But it is not necessary to decide here, whether the limitation to questions of law, contained in that section, must not be taken, with the exception of cases where the trial was by the court, and where the right of review, both of questions of law and fact, was given by the express words of the act, in the 268th section. But,
2d. If such exception be not within the fair construction of sections 348 and 268, construed together, then there must be a power in the coiu’t to review judgments entered on a report of referees, and on a trial by the court without an appeal. For if this be not so, then a most important right, given by the express words of the act, is abolished; and the enactment itself, giving the right of reviewing questions of fact in cases of this description, has become a dead letter. Such review must, however, be at the general term. It must also be as provided by the code. The words in section 278, as “ herein provided” must be taken as equivalent to the phrase “ as provided in this act.” And I am aware of no provisions for reviewing judgments at the general term except by appeal. But, as already intimated, it is not necessary to decide that question now.
*3133d. It is not to be denied that the last phrase of section 272, is obscure and ambiguous. If the framers of .this provision had any clear ideas of the practice they were establishing, they have failed to make their views intelligible. When the Legislature say that a re-hearing may be granted by the court in which the judgment was entered, they do not say that it may be granted at special term. The judgment is entered in the Supreme Court; and, inasmuch as the judgment on the report of referees is not entered by the direction of a single judge, there is no reason for holding that the re-hearing is to be granted by the Supreme Court at a special term. It may be that this clause was not intended to apply to a motion for a new trial on the merits. If the referees should have made a clear mistake (for instance, in adding up a column of figures,) and should make an affidavit of the fact, a re-hearing might be granted upon a non-enumerated motion on the ground of accident or surprise. This provision may be intended for such a case; or it may be intended for the County Court. That court has jurisdiction of some special cases, such as mortgage foreclosures. In such, a set-off might be set up, and a reference of the whole issue to a referee. In. such case the judgment would be entered in the County Court, and a re-hearing might be granted by the County Court, being the same court' in which judgment was entered. The provision may apply to such a case.
4th. In this case, it appears that the defendant has appealed; and thus made his election of remedies. And granting that he had an alternative remedy, he is not entitled to both.
The motion must be denied with $10 costs.