This cause was a proper one for a reference. "We shall consider the grounds of this motion to set aside the *243repoi’t in their order, independent of a subsequent statement by the referee placed upon file, and to the filing of which objection was made by the defendant’s counsel. We will see how the case would have stood without any such statement from the master, and if these irregularities had been pointed out during the term with the first motion. The first irregularity complained of was, “ that exceptions taken to ruling and decision of referee during the trial and examination before him had not been returned with his report to the court.”
It would be a conclusive answer to that complaint that the court had no evidence that any such exceptions were taken, unless resort be had to the subsequent statement of the referee, to which the defendant’s counsel object and except.
The second irregularity complained of was, “ that the referee had not stated the facts found and. the conclusions of law separately.” He did find the amount due from the defendant to the plaintiff:' as a matter of fact, and that the plaintiff was entitled to recover that sum from the defendant as a matter of law. This we regard as sufficient in form.
The third complaint was that “ the decision was made by the referee, and his report filed without notice to the defendant, without his knowledge, and without opportunity to except thereto.”
But there is nothing on the record to show any such want of opportunity, nor does the defendant present any evidence, unless it be the very statement of the referee, to which defendant objects as incompetent.
“ Where all the issues are referred to a referee, the prevailing party need not give notice of the report or furnish a copy of it. Judgment is of course.” Van Steenburgh v. Hoffman, 6 How. N. Y. 493.
The fourth objection to the judgment was like the third, and subject to the same answer.
*244The fifth objection, was, “ that the judgment purported to have been entered upon the motion to confirm the report of the referee, and for the entry of judgment thereon, when no motion was ever made.”
Here again the entry of the judgment itself was the only evidence which showed there was a motion. But as no motion was necessary, it was quite immaterial whether a motion was made or not, and whether it was oral or written. A judgment follows on the finding of a referee as it does on the finding .of a jury, without any motion.
The sixth objection was, that “ the judgment purported to have been made after the court had carefully examined the report and the evidence, when no evidence- whatever was returned by the referee.”
As the order of reference did not require any report of the evidence, the court might well take the evidence to be in accordance with the report, which was what the court asserted in the entry of the judgment.
The seventh objection was general for informality and want of opportunity to except, which is covered by what has already been said.
Thus stands the case on the record, and the motions, with the assignment of irregularities.
But on the hearing of the motions to set aside the judgment, the referee was permitted by the court to make a statement of what took place after the cause was referred. To this.the defendant objected, and now asks that the judgment be reversed, because that statement may have influenced the mind of the judge in overruling the motions of the defendant. We have seen that if the statement had not been made or filed, the court would have had no ground to sustain the motions.- The error, therefore, if it were error to permit the statement, could not have prejudiced the defendant.
But if we regard that statement as competent evidence on the hearing of the motion, and so available to the plaintiff in error to show what took place, the result would, *245in our opinion,' be tbe same. Tbe defendant can not have part of the statement without the whole.
Taking the whole statement together, we are satisfied that it shows no ground to interfere with the finding. The parties agreed to have this cause referred to the referee for decision. There does not appear to have been any neglect on his part to take testimony, and give the parties full opportunity to present their case, and he decided it. The judge at Special Term saw no reason for refusing to render judgment upon his finding, or for setting it aside after it was rendered, and we think his ruling was correct.
The judgment is affirmed.