This action was referred by consent and tried before tbe referee agreed upon, who reported in favor of tbe respondent, and judgment was entered in bis favor, which tbe appellant appealed to the general term of tbe supreme court. Upon a reargument tbe general term reversed tbe judgment, and ordered a new trial before another referee.
Tbe respondent now moves to vacate tbe original order of reference, and be at liberty to try the case before a jury. The appellant bad already made a motion for tbe appointment of a new referee, and by consent both motions are beard as one.
Tbe amendment of 1879 to section 1011 of tbe Code of Civil Procedure seems to make it imperative on tbe court to appoint another referee where a new trial is granted in an action tried before a referee named in tbe stipulation to refer, “ unless tbe stipulation expressly provides otherwise.” Nothing of tbe kind is claimed as to tbe stipulation in this case. It therefore seems tbat there is no alternative, and tbat this court must follow tbe section referred to, and appoint another referee, unless something is shown calling for relief from tbe original stipulation and order of reference entered thereon.
It appears from tbe affidavit of tbe respondent, and also from tbat of bis attorney, tbat tbe respondent was not favorable to a reference át and before be consented to refer tbe action — tbat be bad more confidence in a jury; still, with these considerations in bis mind, be consented to a reference to tbe referee, whose name was suggested by bis attorney, and having thus *355consented to a reference of the case, he must stand by it, unless for some good reason shown to exist, of which he was ignorant at the time of consenting to the reference, he ought to be relieved from its binding force.
The reason now shown for asking to vacate the stipulation and order of reference, if not precisely, is substantially the same that were revolving in his mind at the time the stipulation was made. Courts frequently interpose to relieve a party from an order, contract, stipulation and the like, but upon a state of facts which are newly discovered, or when there has been a mistake, and especially where a fraud has been practiced upon him by an adversary.'
The motion to vacate must be denied, and the motion to appoint a new referee must be granted, and an order may be entered accordingly, and designating Greorge N. Orcutt, Esq., the referee, who is hereby appointed as such.
Note. — The order has just been affirmed by the supreme court, general' term., fifth department.— [Ed.