(dissenting):
The debit side of the referred claim amounted to $56,943.48, the credit side to $9,693.24, leaving a remainder of $47,250.24 claimed *257to be due from tbe estate. Among tbe items making up these amounts were the following:
Estate, Dr.
March 5, 1882, to cash paid to Societe' du frein avide
Eames, 62,500 francs.............................. $12,062 50'
910 days interest....................-.................... 1, 811 48
$13,873 98
April 25, 1882, to- par value- of stock of Societe. du frein avide Eames, 125,000 francs ............... 24,125 00
Or. $37,998 98
April 22, 1882, by cash received from Societe du frein avide Eames, account disbursements, 20,418.85 francs .... $3,940 82
862 days interest, at six per cent........ 566 14
—-- 4,506 96-
$33,492 02
Upon the trial the claimant asked leave to abandon these three-items. To this the executrix objected on the grounds: (1.) “ That the account, agreement and order of reference constitute the pleadings, and an amendment cannot be made to the same in this manner. (2.) She is not prepared to give proof of the credit as it was admitted in the pleadings.” The objections were overruled, the amendment allowed and items withdrawn, to which ruling the executrix excepted. This was error. This mode of determining-claims against decedents’ estates was first provided for by the Eevised Statutes, and section 37 of title 3 of chapter 6, part 2 of the Eevised Statutes (vol. 2, p. 89), which prescribes the powers of referees and regulates the procedure upon references of claims' against decedents’ estates, has remained unchanged since its adoption in 1828. Under the Eevised Statutes referees were without' power to amend the pleadings in actions referred to them, and they" remained without this power until 1857, when it was conferred by an amendment to section 272 of the Code of Procedure. It has not' been understood that the enlarged powers of referees under the Codes: were, by implication, conferred by the Codes upon referees appointed! *258under the Revised Statutes to determine disunited claims against decedents’ estates.
Title 2 of chapter 10 of the Code of Civil Procedure confers many powers upon referees authorized to hear and determine actions, not possessed by such referees under the Revised Statutes. Referees in actions may now punish for contempt, amend pleadings, direct the entry of judgments upon their reports and, in short, exercise the powers of a court upon the trial of an action. Prior to the .amendment in 1857 of section 272 of the Code of Procedure, judgments could not be entered upon the reports of referees in actions until after1 confirmation by the court and judgments ordered. Before, and since this amendment, it has been uniformly held, that judgments cannot be entered upon reports of referees appointed to •determine claims against decedents’ estates without an order of the •court. If the power to allow amendments is conferred by implication upon referees appointed under this statute, it is difficult to see why all of the powers possessed by referees in actions, are not conferred by implication. Such has not been the understanding of the courts or of -the profession. In Mowry v. Peet (88 N. Y., 153), it was held that a referee could not award a judgment for the representatives and against the claimant for a sum found due the estate. This statute was designed to afford a simple, cheap and expeditious mode of determining the validity of small claims questioned by representatives. Not unfrequently the referees are laymen. Claims •cannot be referred except by the agreement of the parties and the •consent of the surrogate. It may be that this executrix would not have consented to a reference of a part of this claim, and so exposed the estate to the expenses and hazards of two litigations; and it may be that the surrogate would not have approved of a reference of a part, of the claim. If a referee may allow a claimant to amend his ■claim by withdrawing part, he might amend the claim by adding ■other items; and thus a controversy would be referred which the parties had not agreed to refer, and which was not approved of by -.the surrogate.
I think that under such a reference the referee is without power to amend the claim by adding to or subtracting from it any items; ■and for this reason, the judgment should be reversed, with costs.
Judgment and order affirmed, with costs.