Opinion of the Court, per RAPALLO, J.

396; Hulce v. Sherman, 13 How., 411; Rogers v. Beard, 20 How. Pr. Rep., 282-285; Peck v. York, 14 How. Pr. Rep., 416; Leffler v. Field, 33 How. Pr. Rep., 390; Tilman v. Keane, 1 Abb. Rep. N. S., 23; Snook v. Fries, 19 Barb., 313.) Under the clause in notice "for such other or further order," etc., the court should have sent report back with directions to state his findings. (Blake v. Eldred, 18 How. Pr. R., 240-243; Bonigton v. Lapham, 14 How. Pr. R., 360-363; Ridder v. Whitlock, 12 How. Pr. R., 208-214; Martin v. Kanouse, 2 Abbott, 390; Hecker v. Mitchell, 5 Abbott, 454; Barstow v. Randall, 5 Hill, 518.)

A. Monell, for respondent. A referee is only required to find facts necessary to sustain judgment. (Nelson v. Ingersoll, 27 How., 1; Sermont v. Bætgen, 49 Barb., 362.) The omission of appellant to request findings upon the desired points is fatal. (Grant v. Morse, 22 N. Y., 323; Ashley v. Marshall, 29 N. Y., 494; Brainard v. Dunning, 30 N. Y., 211.) A referee's decision after judgment can only be reviewed by appeal therefrom. (Laws of 1849, p. 680, § 323; Enos v. Thomas, 5 How. Pr., 361, Supreme Ct., 1850; Comstock v. Rathbone, 1 Johns., 138.)

RAPALLO, J. The frequency of appeals to this court, under the fourth subdivision of section eleven of the Code, from orders involving mere questions of practice, admonishes us, that unless we rigidly confine such appeals within the limits prescribed by that section, we shall be continually called upon to determine controversies in regard to modes of procedure in the courts below; and the time of this court will be thus consumed, to an extent, totally incompatible with the discharge of its more important duties.

We must therefore, in all such cases, dismiss the appeal, unless it clearly appears, that the determination sought to be reviewed has deprived the appellant of a substantial right, instead of simply affecting the mode of obtaining relief.

It was doubtless the right of the plaintiff to have separate findings of fact and conclusions of law inserted by the referee

Opinion of the Court, per RAPALLO, J.

in his report. This right is secured by statute, and it is substantial, inasmuch as these findings and conclusions, enable the unsuccessful party to determine whether or not to appeal; and in case he desires to appeal, they are indispensable to enable him to frame and serve his exceptions in due time, and to present the case in proper form for review. (Tilman v. Keane, 1 Abb. N. S., 24; Rogers v. Beard, 20 Howard Pr., 282.) The decision to the contrary in Johnson v. Whitlock (13 N. Y., 344), was based upon the then existing provisions of section 267 of the Code, relating to trials by the court. But the amendment of that section adopted in 1860 removes the foundation of that decision.

The report should contain a sufficient statement of facts, to form a basis for the conclusions of law, and substantially show the disposition made by the referee of the specific issues in the cause, or of such of them as are embraced in his determination. A mere general conclusion of indebtedness or no indebtedness, is not a sufficient compliance with the provision of the Code, and serves none of the purposes for which it was intended.

It has been repeatedly held, however, that the insufficiency of the findings is not, of itself, a ground for the reversal of the judgment on appeal; but that the party desiring a review must procure such findings as will raise the questions of law, which he desires to present to the appellate court. (Brainard v. Dunning, 30 N. Y., 211; Smith v. Coe, 29 N. Y., 666; Grant v. Morse, 22 N. Y., 323; 13 How. R., 411; 20 Howard Practice R., 282.)

It is obvious, therefore, that unless he can obtain proper findings, the defeated party is deprived of the substantial advantages of an appeal.

But it does not appear in this case that the plaintiff's right to such findings was denied by the court below. Its decision simply was, that it would not set aside the report on account of the insufficiency of the findings. The motion was to set aside the report, and for such other or further order as should be proper.

Opinion of the Court, per RAPALLO, J.

The denial of that motion is not equivalent to the denial of a motion for further findings.

The decision in Tilman v. Keane (1 Abb., N. S., 24), rendered by the same learned judge who delivered the opinion of the court in this case at General Term, shows that, if the motion had been for further findings, or to send back the report for correction, it would have probably been granted.

There are some cases in the books, in which the report has been set aside as irregular for want of any findings of fact. (1 Code Rep., 54; id., 121; 4 Sandf. S. C., 691; 33 How. Pr., 385.) But where the objection is to the sufficiency of the findings, it has been often held, that application should be to correct the report by inserting further or more specific findings. (13 How. Pr., 411; 6 id., 492; 20 id., 285; 19 Barb., 313; Lefler v. Field, 50 id., 407; 30 N. Y., 211, 216.) Whether the remedy in this case should have been sought in one form or the other, was a mere question of practice, the determination of which, did not necessarily dispose of the right of the plaintiff to further findings.

It is claimed, however, that under the words, "and for such other and further order," etc., in the notice of motion, the court should have granted the relief to which the plaintiff was conceded to be entitled. It undoubtedly might have done so with great propriety, either at Special or General Term, as the moving affidavit clearly disclosed the occasion for such relief. (People v. Supervisors of Delaware Co., March, 1871.) But we cannot say that it was a legal error, reviewable in this court, not to exercise that power. If a party has mistaken the practice, and moved for an order to which he was not entitled, it must, in general, be discretionary with the court, whether to grant other relief under these general words, or to deny the motion.

When a motion is thus denied, the party is at liberty to make a new motion for the proper relief (5 Abb., N. S., 277, Hall v. Emmons, Court of App., Oct., 1870); and that course is much more appropriate than an appeal.

But there is no sufficient ground in any case for entertain

Opinion of the Court, per RAPALLO, J.

ing an appeal to this court, before judgment, from an order in respect to findings. Until the whole case is before this court, the materiality of findings upon particular issues cannot conveniently be examined. It seems to us that the proper practice, where the referee has failed to pass upon material questions of fact or of law, is to apply to the court before the time for excepting has expired, to send the case back to the referee, to pass specifically upon such questions or to re-settle his report; and the materiality of the desired findings should, on such application, be shown to the court. The entry of judgment should be stayed, or the time to except extended, until the application is disposed of. Should the application be denied, and should an appeal be taken from the judgment, the proceedings to obtain further findings can be inserted in the record, and the materiality of the findings asked for and refused, can be determined at General Term and here, on a review of the whole case.

When the defeated party has thus endeavored to obtain proper findings, the presumption, made in ordinary cases, that all material facts of which there was evidence have been found against him, will not apply in respect to the matters as to which he has sought to obtain specific findings; but those matters will be regarded in the same manner as facts which, upon a trial, the court has refused to submit to the jury, and the consequences of such refusals can then be considered.

This appeal should be dismissed, with costs.

All concur.

Appeal dismissed.

SICKELS-VOL. I. 34

Statement of case.

JACOB BENDETSON, Appellant, v. RICHARD FRENCH, Respondent.

Plaintiff, a guest in defendant's hotel, offered to the book-keeper a large package containing jewelry, and without stating its contents, requested him to deposit it in the safe. The book-keeper replied that it was not necessary, and requested plaintiff to take it to his room, saying, it would be just as safe there. When plaintiff was ready to leave, he packed his trunk, in which the package then was, delivered up the key of his room to the hotel clerk, and requested the trunk to be brought down immediately. This was not done; and upon plaintiff's calling for it shortly after it was found broken open and the package stolen.-Held, that defendant could not be held responsible for a refusal to receive; but that there was a "neglect to deposit" within the meaning of the innkeepers' act of 1855. (Laws of 1855, chapter 421.)

That said act, however, only relieves the hotel proprietor from losses occasioned by such neglect; and that, as in this case, the loss happened at a time when the package, if it had been deposited, would have been returned to the guest to be packed prior to departure, defendant was liable.

(Argued June 21st, 1871; decided September 5th, 1871.)

APPEAL from an order made by the Supreme Court at General Term in the first district, reversing judgment in favor of plaintiff, entered upon the report of a referee, and granting a new trial. (Reported below, 44 Barb., 31.)

The action was against the defendant, a hotel proprietor, to recover the value of watches, jewelry, etc., claimed to have been stolen from the plaintiff's room in October, 1861, while he was a guest in the inn.

In October, 1861, the defendant was the proprietor of and kept an inn, known as French's Hotel, in the city of New York; and the plaintiff was a guest therein from the fourth, to and including the eighth of October.

The plaintiff arrived in New York on the fourth of October from Rio Janeiro; and on that day, before going to the hotel, he delivered a part of the jewelry, etc., in question, to a custom-house officer with a view to paying the duty thereon.