A portion of the relief demanded in the plaintiff’s complaint was that an accounting should be had by the estate of' Lucy G. Russell, and the interlocutory judgment, entered in pursuance thereof, contained the following provision:
“Fourth. That the plaintiff is entitled to have a fair and full accounting-of the estate of the said Lucy G. Russell, and particularly of the said railroad stocks, securities, and other property, transferred to the said Lucy G. Russell by the said Dorr Russell, and of the proceeds and avails thereof, and of all moneys and property received by her, directly or indirectly, from the said Dorr Russell, and of the rents, issues, and profits thereof, and of the said real estate. And the said defendants are, and each of them is, hereby ordered and required to discover and answer as to the same, upon their several oaths. The plaintiff is hereby authorized, upon proper notice-to the attorneys for the defendants, to move for the appointment of a referee-to take such account, such appointment to be made by order, to be entered at the foot of this decree. If .it shall appear, on said accounting, that the said1 Lucy G. Russell paid anything from her own personal estate for the said' railroad stocks and securities, then that an account be taken of the moneys, so paid, and also of the moneys, property, and profits received by her, or byPage 459any other person for her use, or by the defendants, or either of them, and the balance, if any, remaining unpaid, and due to her, or her estate. That, upon such accounting, the defendants, and the estate of the said Lucy G. Russell, be charged with any and all moneys and property, paid by said Dorr Russell, directly or indirectly, upon the said Edward Clark mortgage, since the conveyance of the mortgaged property to the said Lucy G. Russell, and with the said railroad stocks, securities, and other property, transferred to her by the said Dorr Russell.”
Thus, the matters that were referred to a referee, to hear and determine, were only partially tried, or at least but partially determined. The more important questions involved in the case were: (1) As to what interest the estate of Mrs. Russell had in the real estate mentioned in the complaint, by reason of having paid the ' Clark mortgage or otherwise; (2) how much she, in fact, paid towards the railroad stocks and other property which stood in her name. The referee’s report, and the judgment entered in pursuance of it, direct that these important matters shall be referred to another referee, to hear and determine, after the entry of an interlocutory judgment, which is, in many respects, inconsistent with such a reference. The learned referee, to whom this action was referred, instead of taking the accounting, and determining the amount of the property, if any, which came into the possession of the estate of Lucy G-. Russell, for which it was liable to account to the plaintiffs, under the facts as found by him, held, as a conclusion of law, that the plaintiff was entitled to have a fair and full accounting, as stated in the demand of the complaint relating to that subject. The order appointing the referee was entered upon the stipulation of the parties, made in open court, that the case be referred to the referee named, to hear and determine, and the order entered in pursuance thereof was “that the cause be, and the same is hereby, referred” to the referee named, “as sole referee, to hear and determine all the issues therein.”
Under this order, the referee should have heard and determined all the issues made by the pleadings, and if, under the proof before him, the plaintiff was entitled to an accounting, he should have taken and stated the account. It was not the intention of the parties, or of the court, that only a portion of the questions involved in the case should be determined by the referee, and that those remaining should be determined by another and different referee, to be subsequently appointed. It is obvious that the court and both parties intended that such a determination of the case should be made by the referee as would entitle the party succeeding to a final judgment in the action. We know of no authority to justify a referee in determining only a portion of the questions referred to him, and then to direct an interlocutory judgment, and that the court appoint another referee to complete the hearing, where the whole case is referred to him by the consent of the parties. In this case, no reason is apparent why the referee could not have taken the accounting demanded in the complaint as well as another referee, to be subsequently appointed. The subject Of the accounting related, not to matters which might arise in the
“Ordinarily, where the whole issue is referred, it is no doubt the duty of the referee to take, state, and adjust the accounts of the parties, on the basis on which, by his decision, he may settle their rights; for, as a portion of the issues, that is included within the reference provided for.”
We are of the opinion that the proper and orderly disposition of this case requires a reversal of the order of the special term, settling. the form of the judgment herein, and that the- parties have leave to apply to the special term for an order setting aside the report of the referee, and sending the case back to him to complete the trial thereof, so that a final judgment may be entered upon his report. Such a disposition of the case will, we think, better serve the ends of justice, and the interests of all parties, be more in keeping with the intention of the parties when the case was referred, and present the questions on appeal, if a subsequent
Order of special term, settling the form of the judgment to be entered on the report of the referee, and judgment entered thereon set aside, with $10 costs and disbursements, with leave to either-party to apply to the special term for an order sending the case-back to the referee, to complete the hearing and determination, thereof.
HARDIN", P. J., concurred.