The court undoubtedly at special term has the power to send back the report of a referee when it is so materially defective as not to pass upon all the issues referred to him. But I think it very inexpedient to exercise this power when the party who asserts that the referee has not performed his duty in this respect has, with other exceptions, excepted to the report on this ground.
*33At the hearing before the general term, if the court discover that the referee has omitted to report upon all the issues, and that the party injured by the omission has duly excepted, as in this case, the judgment will be reversed on this ground, and a new trial will be ordered. In Snook agt. Fries (19 Barb. 313) the referee omitted to state the facts found and the conclusions of law separately, as required by section 272 of the Code, which omission the court thought should have been supplied before bringing the case to argument. But, where the referee has stated the facts separately upon which he rests his legal conclusions, the objection that he should have found other facts, should be reserved for the decision of the appellate court upon the case and exceptions. I may as well add that I have no doubt that the referee can, of his own accord, state any additional proceeding which he may deem proper in the settlement of the case.
Motion denied without costs.