Unless otherwise specified in the order of reference, the referee shall conduct the trial in the same manner as a court trying an issue without a jury. The provisions of article forty-four applicable to trial by the court shall apply to a reference pursuant to this article.
§ 4318.Conduct of trial.
Article 43. Trial by a Referee · Last amended 1964 · Last verified July 21, 2026
In one sentenceUnless the order of reference says otherwise, a referee runs the trial exactly as a judge would in a non-jury case, and the article 44 rules on trial motions, including post-trial motions, apply just as they would before a judge.
Full Text of CPLR 4318
Plain-English Summary
CPLR 4318 ties the referee's trial procedure to ordinary bench-trial practice. A referee conducts the hearing the same way a judge trying a case without a jury would, unless the order of reference carves out a different procedure.
The second sentence does real work: it imports all of article 44's trial motions into a reference, including the post-trial motion for judgment or a new trial under CPLR 4404. That closed an old gap in New York practice, where only an official referee could hear that kind of motion; every other referee left the parties with nothing but an appeal if they wanted to challenge the outcome after the fact.
Frequently Asked Questions
Can a referee decide a motion for a directed verdict or judgment notwithstanding the verdict?
Yes. CPLR 4318 applies article 44's trial motions, including the post-trial motion under CPLR 4404, to a trial conducted before a referee.
Does a referee follow the same procedure as a judge during trial?
Yes, unless the order of reference specifies something different, the referee conducts the trial the same way a court would in a non-jury trial.
Can the order of reference change how the referee runs the trial?
Yes. CPLR 4318 defers to the order of reference first; the article 44 default procedures apply only where the order is silent.
Before CPLR 4318, could every referee hear post-trial motions?
No. Under prior law only an official referee had the power to hear a post-trial motion; a party who tried a case before any other referee could only appeal. CPLR 4318 closed that gap by extending article 44's motions to every reference.
Does CPLR 4318 apply to all of article 44's trial motions, or only the post-trial motion?
All of them. CPLR 4318 makes every provision of article 44 governing trial by the court, not only the post-trial motion under CPLR 4404, applicable to a trial conducted before a referee.
Advisory Committee Notes
This section represents the former practice under the first sentence of CPA § 469 insofar as it related to procedures prior to the filing of the referee’s report. A change is made in that a referee is empowered to hear post-trial motions pursuant to CPLR § 4404 and to grant the relief which may be granted after a trial by the court under that section. Under former law, only an official referee had that power. Judiciary Law § 117; Casiano v Dukas, 2 Misc 2d 560, 152 NYS2d 512 (Sup Ct 1956). Prior to 1951, a motion for a new trial pursuant to CPA § 549 could not be made after a trial by the court or a trial by a referee. An amendment to that section empowered a judge presiding at a trial without a jury to hear such motions and to set aside his decision, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions and render a new decision. Laws 1951, c. 218. However, the amendment did not affect trial by an unofficial referee; after such a trial the parties could only resort to an appeal. This section eliminates this difference between trial by a referee and trial by the court.
Amendment History
Add, L 1962, ch 308; amd, L 1964, ch 388, eff Sept 1, 1964.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: referee trial procedure New Yorkreferee post-trial motions CPLRtrial before a referee New York