In an action at law, sent to a referee without reservation of the right to a jury trial, the report of the referee is treated as a verdict, and the action of the court in confirming the report is not reviewable on appeal.
PER CURIAM.
This is an appeal by one of two defendants from a general judgment against them, as owners, in a mechanics' lien case, at the suit of the general contractor.
The matter being before the Hudson Circuit Court, after answer filed by appellant, an order of reference to a referee was made. Thereafter, the other owner, Studerus, who appears not to have been served with process, came in, filed his answer, and the case proceeded against both Studerus and the appellant, McCullough. A supplemental order was made giving Studerus leave to present proofs before the referee. Studerus filed his reservation of the right to have a jury trial. The appellant made no such reservation.
Upon the filing of the referee's report, Studerus filed exceptions and demanded a jury trial. McCullough filed exceptions to the referee's report and moved that the report be rejected and that a verdict be entered in his favor. The Circuit Court made an order confirming the report, and McCullough appeals from the judgment entered pursuant to such confirmation.
Numerous grounds of appeal are filed, but are not argued. The only ground argued is that plaintiff failed to establish his case by the proofs.
In Grantwood Lumber Co. v. Aragona, 109 N.J.L. 447 , it was held that an appeal in a case like the instant one will not lie. There was no judicial action in this case that is the subject of exceptions and appeal.
The appeal will be dismissed, with costs.
For dismissal — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 15.