In terms the order of reference made by the surrogate was to examine the “ accounts and objections, and to make report thereon to the surrogate.”
Power to make such a reference is conferred upon the surrogate by section 2546 of the Code of Oivii Procedure. The oi’der did not in terms confer power upon the referee “ to hear and determine all questions arising upon the settlement of such an account.” As to all questions which the surrogate had power to determine, such a reference might have been authorized by the surrogate.
In such a case it would have been the duty of the referee to make report thereon, “ subject, however, to confirmation by the surrogate, ” under the order of reference to “ examine ” and to report therein to the Surrogate’s Court. The surrogate had the power, and it was his duty, to examine the evidence and the report thereof, and to consider the exceptions filed to the report, and.to determine questions presented thereby for his review and consideration.
Such was the practice under the Revised Statutes in respect to reports made by a referee in cases of rejected claims referred under the statutes. Such was the practice in respect to proceedings had before an auditor. (Boughton v. Flint, 74 N. Y., 476.) When the surrogate refused to consider and rule upon “the several objections and exceptions, ” we think he fell into an error. He had control of the proceedings, and before passing upon the report in gross, should *553have considered the rulings m&de by the referee, and the exception? taken to his report in detail. (Code of Civil Pro., § 2546.) We need not consider what would have been the duty of the surrogate had the order in terms conferred power upon the referee “ to hear and determine all questions arising upon the settlement ” of the account.
Inasmuch as the surrogate has not passed upon the exceptions taken, and refused to do so, and an exception was taken to his refusal, we think the order made by him cannot stand. It should be reversed together with the decree based thereon, and the proceedings be remitted to the surrogate of Niagara county, with instruction to proceed to examine and rule upon the several exceptions presented to him by the parties. Costs of this appeal should be allowed to the appellant, payable out of the fund. ' ,
Order and decree reversed, and proceedings remitted to the surrogate with directions to proceed, costs to appellant payable out of the fund.
Barker and Dwight, JJ., concurred.Order and decree of the surrogate of Niagara county reversed, with costs to appellant, and proceedings remittedi to surrogate, with instructions to proceed.