Opinion
December, 1934.
Order denying appellant's motion to disapprove the referee's report, dated April 14, 1934, reversed upon the law, without costs, and matter remitted to the Special Term to pass upon the referee's report, considering said report as an aid to the court in determining the motion made by the receiver to settle her accounts. ( Baff v. Elias, 152 App. Div. 226.) In our opinion, the court was without power to refer the matter in question to the official referee to hear and determine. The order should have been made to hear and report, and we so consider it in making this decision. The appeal from the order of reference, dated November 15, 1933, is dismissed, this order having been entered on the appellant's motion. ( Gasteiger v. Gasteiger, No. 2, 222 App. Div. 752.) The appeal from the order denying resettlement of the order of reference is likewise dismissed as not appealable. ( Bergin v. Anderson, 216 App. Div. 844.) Young, Carswell and Tompkins, JJ., concur; Lazansky, P.J., dissents and votes to affirm as to first mentioned order on the ground that the entry of the order of November 15, 1933, was on appellant's motion. This, in effect, was a consent to the order of reference to hear and determine. Therefore, that order should not be considered in any other aspect; concur as to two other appeals. Scudder, J., not voting.