Robinson v. The Mutual Benefit Life Insurance Company. due notice and proofs of the death of the said Homer G. Robinson, and whereby, in case the said assured should die before the decease of the said Homer G. Robinson, the amount of said insurance should be payable to the children of the said Homer G. Robinson and the plaintiff, or to their guardian, if under age, within the like period. On the 6th day of March, 1868, the said plaintiff and the said Homer G. Robinson, by an instrument partly printed and partly written, assigned, transferred and set over unto one Mortimer C. Mordoff, the above-named policy of insurance, and all moneys, interest, benefit and advantage whatever, then due, or thereafter to arise, or to be had or made, by virtue thereof, and the said defendant, on the 14th day of March, 1868, duly assented to such transfer in writing. Though the said assignment was absolute and unconditional in its terms, it was, nevertheless, intended by the parties thereto as collateral security to the said Mordoff for any premium which he should thereafter pay upon said policy of insurance, but the defendant had no knowledge or information of the scope or nature of said assignment, except as expressed by the written and printed terms of said assignment. The annual premiums provided for by said policy were, after the assignment of said policy as aforesaid, duly paid to the defendant by the said Mortimer C. Mordoff, as such assignee, down to and including the premium due and payable on the 5th day of February, 1876, amounting in all to the sum of about $500. The said Homer G. Robinson died at the city of Rochester, New York, on the 18th day of January, 1877. Proofs of loss were duly presented to the defendant by Mortimer C, Mordoff, assignee as aforesaid, on or about the 24th day of January, 1877, and he received from said defendant, on or about the 21st day of April, 1877, payment in full on the said policy, less the sum of about three hundred dollars reserved by said defendant to meet the notes of said Mordoff given in part payment for premiums. After the death of the said Homer G. Robinson, the said Mordoff being then insolvent and in bankruptcy, and claiming to the plaintiff and her Robinson v. The Mutual Benefit Life Insurance Company. counsel that he had advanced to the plaintiff for her benefit and support large sums of money other than the payment of the premiums as aforesaid, entered into an oral agreement with the plaintiff and her counsel, whereby he, the said Mordoff, was to pay unto the plaintiff, and the plaintiff was to receive from him, in full satisfaction of her interest in and to said policy, the sum of one thousand dollars, and, from time to time between the 2d day of May, 1877, and the 13th day of September, 1877, the plaintiff did receive of the said Mordoff, of the said moneys so collected by him, the sum of $700, and, on or about the 9th day of November, 1877, the said Mordoff offered to pay the plaintiff the remaining $300 thereof, which the plaintiff refused to receive, in full settlement of her claim for the said moneys collected by him of the defendant. The said Homer G. Robinson left him surviving three infant children, besides his widow, the plaintiff in this action. No part of the sum secured by the policy has been paid by the defendant to the plaintiff, except as hereinbefore stated." Upon the foregoing facts, so found, the referee found, as conclusions of law: "1st. That the assignment, by the plaintiff, of the said policy to the said Mordoff, for the purpose of securing the payment of premiums thereon, was valid. 2d. That the plaintiff, having received at the hands of said Mordoff a portion of the moneys secured by said policy, is estopped from denying the validity of said assignment. 3d. That the plaintiff's complaint be dismissed. The plaintiff, in due time, and prior to any report or findings by the referee, filed with the referee written requests that the referee would find, from the evidence, as follows: (1.) That the assignment to Mordoff must be governed by the laws of the State of New York; (2.) That the said assignment was null and void; (3.) That, prior to the payment of the money to Mordoff, he had no authority from the plaintiff to receive it for her; (4.) That Mordoff was in no sense the agent of the company to pay or compromise the claim; (5.) That Mordoff was not the agent of the company for any pur Robinson v. The Mutual Benefit Life Insurance Company. pose, nor did he claim to be acting for it; (6.) That Mordoff was in no sense the agent of the plaintiff nor did he claim to be acting for her, either before or after receiving the money from the defendant; (7.) That all that was done, as between the plaintiff and Mordoff, was done under and by virtue of the assignment alone; (8.) That the plaintiff has never entered into any agreement with the defendant to take less than the amount of her claim; (9.) That the defendant has never paid the plaintiff any portion of the amount due upon said policy. The referee, in connection with the findings in his report, declined to find one way or the other on the foregoing requests, except as found or necessarily implied in his report. The plaintiff, in due time, filed exceptions "to the report and conclusions of law" of the referee, "and to each and every part thereof." These exceptions em brace three several exceptions to the three several conclusions of law, and an exception to the refusal of the referee to find as requested in said requests" and each and every thereof." The plaintiff, on the pleadings and proceedings in the cause, and on a case containing the evidence and proceedings before the referee, now moves the court to set aside the report of the referee, and for a new trial. The defendant contends that the Court has no power to grant a new trial in this case. It is apparent that the case must be considered as if an order of reference, in pursuance of the stipulation to refer, had been entered thereon at the time the stipulation was made. Either party is entitled now to have such order entered nunc pro tunc. The parties, in stipulating in writing to refer the cause to Mr. Macomber, "to hear, try and determine the issues therein," must be held to have referred to the practice of the Courts of the State in regard to references by consent. Such a reference, by consent, of all the issues in an action, is provided for by $ 1,011 of the Code of Civil Procedure of New York. By 1,023 such requests to find as were made by the plaintiff in this case, are provided for. Provision is also made by the said Code, (§ 992,) for exceptions to the ruling of a referee on a question of Robinson v. The Mutual Benefit Life Insurance Company. law arising on the trial of an issue of fact, and it is declared, (§ 993,) that, on the trial of an issue of fact by a referee, a refusal to make any finding whatever upon a question of fact, where a request to find thereupon is seasonably made, or a finding without any evidence tending to sustain it, is a ruling upon a question of law, within the meaning of § 992. It is also provided, (§ 994,) that, where an issue of fact is tried by a referee, an exception to a ruling, upon a question of law, made after the cause is finally submitted, may be taken within a prescribed time and in a prescribed manner, after the report of the referee is made. Provision is also made by said Code for a review by the Court of rulings so excepted to. The fact that, in a given case, under the State practice, the review is to be by an appeal to the general term of the Court in which the suit is pending, from a final judgment rendered upon a trial by a referee, and that such appeal may ⚫be taken upon questions of law, or upon the facts, or upon both, as provided by § 1,346 of said Code, is of no importance. There is no general term of this Court, and the statutes of the United States do not provide for any specific appeal or form of review, in this Court, in respect of a trial before a referee, of a suit pending in this Court. The conformity in practice and forms and modes of proceeding in a civil suit at common law in this Court, to the practice and forms and modes of proceeding in like causes in the Courts of record of the State, required by § 914 of the Revised Statutes, is only required to be a conformity "as near as may be." References by consent are authorized in this Court in cases like the present. (Alexandria Canal Co. v. Swan, 5 Howard, 89; York, &c., R. R. Co. v. Myers, 18 Howard, 246; Heckers v. Fowler, 2 Wallace, 123.) Provision is made by § 649 of the Revised Statutes, for the trial and determination by the Court of issues of fact in civil cases in a Circuit Court, without the intervention of a jury, when a stipulation in writing waiving a jury is filed, and it is declared that "the finding of the Court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury." Robinson v. The Mutual Benefit Life Insurance Company. Provision is also made, by § 700, for the making of a bill of exceptions, on such trial by the Court, presenting the rulings of the Court in the progress of the trial, and the exceptions thereto, and for the review of such rulings by the Supreme Court, on writ of error or appeal. It is also provided, by § 726, that all the Courts of the United States "shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been generally granted by the Courts of law." The practice of the Courts of the State, in regard to references, and reports and reviews thereof, in the particulars above mentioned, under the present Code of Civil Procedure, are not substantially different from the prior practice under the prior Code and the decisions thereunder. In view of such practice and of the provisions of the statutes of the United States, this Court, in June, 1876, (13 Blatchf. C. C. R., 569,) made a rule in these words: "In actions at law, a consent to a reference of the . whole issue must likewise contain a provision that judgment shall not be entered until after ten days' notice of the filing of the report of the referee and of the judgment proposed to be entered thereon. After a reference, at any time before the entry of judgment, either party may move for a new trial upon a case or exceptions, and, if such motion be denied, the decision of the motion and the questions involved in it may be entered on the record, as if it had been a ruling made upon a trial by the judge without a jury, and excepted to in like manner. When a motion for a new trial is intended to be made, the Court may extend the time for entering judg ment, upon the application of the moving party, and may stay all other proceedings until the decision of the motion." A like rule was made in the Circuit Court for the Southern District of New York, in February, 1877. (13 Blatchf. C. C. R., 568.) There is no doubt of the power of the Court to grant a new trial where the case has been tried by a jury. Consent to a trial by the Court carries with it power to the Court to grant a new trial. Consent to a trial by a referee carries with it power to the Court to grant a new trial. The |