(dissenting.) Agreeing that these were not referable cases, and that the references were consequently without authority, I am yet unable to concur in the result arrived at by my brethren.
1. In my judgment the remedy, and the only remedy, was an appeal from the order of reference. No such appeal was taken, but the plaintiffs went to trial before the referee without protest or objection, and proceeded so far that it has become a close question whether or no the case has been finally submitted.
% Apart from the question of acquiescence, there are considerations of judicial comity involved. To illustrate: A party moves before one judge at special term for a reference. The motion is heard, and after, let us assume, a careful consideration of the facts and the law, it is granted. The next week the unsuccessful party, upon the same papers, moves the same special term, held by another judge, to vacate the order of the preceding week. Is it not *557plain that such a motion should be denied, and the party remitted to his appeal from the order complained of? Yet if the present order be reversed, it must be because we hold that the special term has erred in not reviewing and annulling the action of the previous special term, and that, too, upon a question not altogether free from doubt, and where the original error is established only after an elaborate discussion of the authorities and a careful analysis of the statute.
3. Another objection is that no motion to vacate the order of reference for the reasons assigned by my brother Daniels has ever been made. This appears from the history of the motions which led to this appeal.
Before any motion was made the plaintiffs claimed that the cases had been finally submitted to the referee, and that he had neglected to decide them, within the time limited by law. They therefore served notices of their election to terminate the reference, and a motion, based upon these alleged facts, was thereupon made simply for a recognition by the court of the termination of the reference, and that the causes be restored to the circuit calendar for trial. This motion, so far from attacking, was, in reality, based upon the validity of the original order of reference. It was denied by Mr. Justice Leonard, and no appeal was taken from such denial. Subsequently, however, an order to show cause against substantially the same relief was obtained from Mr. Justice Ingraham, and in his order to show cause leave to renew was embodied. Before the return day of this order, Mr. Justice Ingraham vacated so much of it as granted leave to renew, that provision having been allowed inadvertently.
Thereupon the plaintiffs obtained an order to show cause why leave to renew should not be granted. The motion for leave to renew was heard at the same time as the motion based upon Mr. Justice Ingraham’s order to show cause, and both motions were denied. The plaintiffs now appeal from the order denying the latter motion, but do not appeal from the order refusing leave to renew, and we are not asked upon the argument, nor are we asked in the briefs, nor is there any thing in the papers to show that the court at special term has ever been asked to consider the propriety of the original order of reference.
4. The question really before the court is, whether we should *558affirm, or reverse the order 'denying the motion which was based upon Mr. Justice Ingraham’s order to show cause.
In my judgment, we should affirm, this order, for the reason that it simply denied substantially the same relief which had already been denied by Mr. Justice Leonard. Mr. Justice Leonard’s "order had not been appealed from, leave to renew the motion which he denied had been refused, and no appeal has been taken from such refusal.
So long as Mr. Justice Leonard’s order remains in full force and no -leave to renew is obtained, a motion for the same relief cannot be entertained.
I am of opinion that the order appealed from should be affirmed.
Orders reversed, etc.