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Mark Henry Schneider v. Antonio D. Melgarejo Randolph, In the Matter of the Petition of Isidor Lazarus, Plaintiff's Attorney, against Mark Henry Schneider, and Antonio D. Melgarejo Randolph
Motion for reargument of motion denied. Motion for reargument of appeal granted. Present — Lazansky, P. J.,
[725] Rich, Kapper, Hagarty and Scudder, JJ. Upon reargument of appeal the decision handed down on March 14, 1930, is amended to read as follows: Judgment entered upon the report of official referee reversed upon the law, without costs, without prejudice to the petitioner, respondent, to apply to the Special Term for confirmation of the report of the official referee. It seems that, in a proceeding of this kind, the court must determine the controversy and a reference is merely for the purpose of assisting the court, the referee having no power to hear and determine. (See Matter of Cartier v. Spooner, 118 App. Div. 342; Sullivan v. McCann, 124 id. 126.) Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.