An action was commenced in November, 1858, by the plaintiff, against the defendant, for §805 for goods sold by plaintiff to defendant.
The answer of the defendant admitted the sale, but set up as a defence that the goods were sold on credit, and that the credit had not expired at the commencement of the action.
In ¡January, 1859, the defendant’s agent had an interview with the plaintiff’s agent (plaintiff being then in Europe), and the defendant’s agent paid the plaintiff the whole amount of the debt, less some interest which plaintiff abated.
This was done without the knowledge or presence of the attorneys for both parties. Subsequently, the defendant’s attorney informed the plaintiff that the action was settled, each party to pay his own costs. The plaintiff’s attorney de*190nied that it was so settled, and, after several interviews with, the defendant’s attorney, the plaintiff’s attorney continued to notice the cause for trial, and finally, in June, 1859, took a judgment by default for the whole amount, and issued execution for the costs only, which amounted to some $102.
The sole question in dispute was, whether the action was settled on the terms of each party paying his own costs, and a motion was made by the defendant to vacate and set aside the judgment.
This motion came on for hearing before me, and the affidavits being conflicting, I directed a reference to ascertain in what manner the action was settled. The order of reference directed the referee to take proof as to the terms and conditions of^ the settlement of the action, and to report the same, together with the testimony, to the court.
The referee made his report, and found that the action was settled on condition that each party should pay his own costs, and subjoined to his report the testimony taken before him.
The judge below, before whom the matter came up for final hearing, concluded that the referee was not directed to find the facts, but merely to take the testimony, and submit the same to this court, and denied the motion to vacate the judgment.
The defendant appealed from this order, and the court have come to the conclusions—first, That the order of reference was rightly construed by the referee; and, secondly, That the evidence taken before him sustained his finding; and the judgment of the general term, therefore, is, that the order made below be reversed, without costs to either party, on the appeal.