¶1The motion to resettle the ease before the referee shordd have been made at General Term, and was, therefore, properly denied at Special Term (17 Civ. Pro. 54), but, inasmuch as the whole record is before us, we think it proper to consider the questions presented below as if they had been presented to us in the first instance. The defendant asks to have the case resettled and. presents two subjects of error, claiming: Eirst, That he was entitled, after the plaintiff was allowed to amend his complaint to conform to the proofs, to renew his motion to dismiss the complaint, and to have the record show all the grounds of his motion. Second, That he was entitled to the benefits of his cross-examination of plaintiff's husband and her only witness produced at the trial and all the inferences derivable therefrom to support his theory on this appeal. The following cases are in accord with the contention of the defendant: New York Rubber Co. v. Rothery, 112 N. Y. 592; 119 id. 633; Kamermann v. Eisner & Mendelson Co., 25 Misc. Rep. 405.
¶2It follows that the order appealed from should be affirmed and *437that the defendant have an order of this court directing the referee to resettle the case in the particulars indicated, and that the appeal from the judgment be heard at the September term.
¶3Hascall and Scotchman, JJ., concur.
¶4Order affirmed and that defendant have an order directing referee to resettle case, and that appeal be heard at September term.