#### Frank W. Perkins, Appellant, *v.*Nellie F. Perkins, Respondent.

First Department,

January 22, 1909.

Divorce — practice — court may refuse to confirm referee’s report —when new trial should be granted.

Where the Special Term refuses to confirm the report of a referee appointed “ to hear arid determine ” an action for divorce, a new trial should be granted before another referee named by the court.

Section 1229 of the Code of Civil Procedure, providing that in matrimonial actions judgment cannot be taken “of course; upon a .referee’s report,” but judgment must be rendered by the court, does not prevent the Special Term from examining the testimony taken before the refefee, and it may refuse to enter judgment on the ground that the evidence does not sustain the conclusions. '

. A reference to try the issues in divorce is not a reference, “to hear and determine,” but rather one to inform the conscience of the court, it being responsible for the judgment.

*194Although the court may refuse to render judgment according to the referee’s report if convinced that the findings are not sustained by the evidence, it cannot enter judgment contrary to that advised by the referee; hence where judgment is denied a new trial should be granted.

Appeal by the plaintiff, Frank W. Perkins, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of October, 1908, denying the. plaintiff’s motion to confirm the report of a referee herein and to enter judgment thereon.

*Edward W. Hatch,*for the appellant.

*Arthur A. Michell,*for the defendant, respondent.

*Charles La Rue,*for the corespondent, respondent.

Ingraham, J. :

This was an action for divorce in which the defendant interposed an answer and which was referred to a referee to hear and determine. He filed his report finding the facts and the conclusions of law and directing judgment for an absolute divorce to be entered against the defendant. Under section 1229 of the Code of Civil Procedure the judgment could not be entered upon the referee’s report as of course, but the testimony and the other proceedings upon the reference must be certified to the court by the referee with his report and judgment must be rendered by the court.. In compliance with this provision the testimony was certified to the court and an application was there made for judgment. The court denied the motion for judgment without making any other disposition of the action, and from that denial the plaintiff appeals.

Personally I do not think it was for the court to confirm a referee’s report where the issues in an action have been referred to him to hear and determine. By section 1228 of the Code of Civil Procedure it is provided that where the whole issue is an issue of fact which has been tried by a referee the report stands as the decision of the court, and except where it is otherwise expressly provided by. law, judgment upon such report or upon the decision of the court upon the trial of the whole issue of fact without a jury may be entered by the clerk as directed therein upon filing the decision or report.

*195This provision would apply to the report of a referee in an action for a divorce except so far as it is modified by section 1229 of the Code of Civil Procedure. That section provides : *“*In an action to annul a marriage, or for a divorce or separation, judgment cannot' be taken, of course, upon a referee’s report, as prescribed in the last section. * * * Where a reference is made in such an action, the testimony, and the other proceedings upon the reference, must be certified to the court, by the referee, with his report; and judgment must be rendered by the court.” There is nothing in the provisions of this section which requires the report to be confirmed by the court upon granting judgment, but the judgment on such a report must be rendered by the court.

(Nor do I think the court was authorized to review the action of the referee and. determine whether the findings of fact were against the weight of evidence. The distinction between the entry of a judgment upon a referee’s report in an ordinary action and an action for divorce is that, in an ordinary action the judgment is entered of course as directed by the referee in his report, and the parties seeking to review that judgment must review it by appeal; while in an action for divorce the referee is required to return to the court the evidence taken before him and the court is required to enter judgment. In this case there was evidence before the referee which, if believed, justified his finding. That evidence was denied by the defendant and the corespondent, but the referee had adopted the plaintiff’s evidence and found the facts which justified a judgment for divorce. The propriety of that finding could be reviewed by the Appellate Division on an appeal.

The question as to the power- of the court under these two sections has, however, been before this court in three, cases which I think are controlling upon us. In *Gorham*v. *Gorham*(40 App. Div. 564) in the third department the court, in considering the right of the Special Term to refuse a judgment upon a referee’s report, held that while the Special Term could not direct a judgment contrary to the findings of the referee it was not bound to confirm the report and direct judgment accordingly, the court saying: “ It must refuse to confirm the report if the evidence certified does not support it satisfactorily to the conscience of the court.” And in that case an order refusing to confirm the report *196was affirmed. The question was also before this court in *Goldner*v. *Goldner*(49 App. Div. 395) when the opinion in tlie *Gorham Case (supra)*was expressly approved; the court saying: “ The duty of the court is not merely perfunctory, but * * * it is required to examine the testimony and to refuse to confirm the report unless, upon the whole case, it is satisfied that the divorce should be granted.” And after, calling attention to section 1229 of the Code of Civil Procedure the court said: “ It is quite clear that there Was some object in requiring the testimony to be returned. If all that the court had to do was to examine the report to see that it contained findings of fact with regard to connivance or procurement, and it had no power to look into the testimony, it is difficult to comprehend why the testimony should be presented upon the motion to confirm. The fact that it is necessary to present it, and that it is necessary to make an application to the court, involves the duty by the court of examining the case for some purpose. That purpose is clearly to see whether, upon the papers that the law requires to be before it, the divorce is properly ordered. It is its duty to look into all the papers and if upon all the papers it is evident that for any reason the divorce should [not] be granted, it is its duty to so direct by refusing to confirm the report.” In that case the order of the Special Term was affirmed upon the ground that there Was conclusive evidence that the offensé Was committed with the consent and procurement of the plaintiff, and that case was followed in *Galloway*v. *Galloway*(92 App. Div. 300). It would seem, therefore, that it is now settled by this court that the‘Special Term has the right to examine the testimony before the referee and if upon such testimony the court is not convinced that a divorce should be granted it is the duty of the court to refuse to enter an interlocutory judgment. But in neither casewas it determined what would! become of the action upon such a refusal to confirm the referee’s report. The action presented a substantial litigation between the parties which had been determined according to law by a referee appointed for that purpose in favor of the plaintiff! If the court was justified in refusing to grant a judgment and nq further provision was made for disposing of the action, there was no method by which the decision could be reviewed or by which the action could be finally determined. The parties were entitled *197to have-some final determination of the questions presented and some judgment entered from which an appeal could be taken. It was expressly decided in the cases above referred to that the court had no power to enter a judgment in favor of the party against whom the. referee had reported so that if the case was ever to be disposed of the only method that I can see would be for the court to order a new trial if it was not satisfied with the testimony upon which the referee had decided that a divorce should be granted. So as we are bound by the decisions before referred to that the court at Special Term has power to look into the testimony and refuse to render a judgment unless it is satisfied that a divorce should be granted, the court necessarily has the further power in such a'case to order a new trial, and we think that tlie court should have made such an order.

It is pointed out in *Gorham*v. *Gorham*(40 App. Div. 564) that prior to the Code of Procedure it was the rule in the Court of Chancery that if the court was dissatisfied with the verdict of a j ury upon feigned issues in a divorce action it became its duty as it was within its power to grant a new trial. This was the course pursued in *Ferguson v. Ferguson*(1 Barb. Ch. 604). By section 1011 of the Code of Civil Procedure it is provided : *“*Except in a case specified in the next section the whole issue or -any of the issues in an action, either of fact or of law, must be referred upon the consent of the parties manifested by a written stipulation signed by their attorneys and filed with the clerk. Where the stipulation does not name the referee he may be designated by the court on motion of either party. * * * If the referee named in a stipulation refuses to serve, or if a new trial of an action tried by a. referee so named is granted, the court must appoint another referee unless the stipulation expressly provides otherwise.” By section 1012 of the Code of Civil Procedure it is provided that in cases specified in that section, which include an action for a divorce, where the parties consent to a reference, the court may, in its discretion, grant or refuse a reference, and where a reference is granted the court must designate the referee ; and if the referee thus designated refuses to serve, or if a new trial of an action tried by a referee so designated is granted, the court must, upon the application of either party, appoint another referee. This case having been tried by a referee *198and a, new trial of the action being granted under section 1012 of the Code of Civil Procedure, the court must upon the application of either party appoint another referee. The order directing a new trial. of the action must, therefore, appoint a 'new referee before whom the triál is to be had.

It follows that the order appealed from must be modified by granting a new trial of the' action before a referee to be named in the order, and as so modified affirmed, without costs..

McLaughlin, Houghton and Scott, JJ., concurred in result.

Scott, J. :

I concur with Mr. Justice Ingraham as to the proper disposition to be made of this case. I do not agree with him, however; that section 1229 of the Code of Civil Procedure was intended to forbid' the court at Special Term, in an action for divorce, to examine the testimony taken before the referee and to refuse to enter a judgment if convinced that the evidence does not sustain the conclusions of the referee. The rule is now well settled to the contrary. *(Gorham*v. Gorham, 40 App. Div. 564; *Goldner*v. Goldner, 49 id. 39*5; Galloway*v. *Galloway,*92 id. 300.) It also appears that under the Revised Statutes, when no divorce action was referable, the Court of Chancery, if dissatisfied with the verdict of a jury on feigned issues, exercised jurisdiction to refuse to enter judgment upon the verdict. *(Ferguson*v. *Ferguson,*1 Barb. Ch. 604.) And this, I think, comports with the provisions of section 1229 of the Code of Civil Procedure. Section 1228 provides for a reference to, hear and determine, and authorizes a judgment to be entered upon the referee’s report without application to the court. A reference to try the issues in a divorce case is nowhere called a reference to hear and determine. It is clearly- intended to be, as has been said in some cases, a- reference to inform the conscience of the court. The responsibility for entering judgment is by section 1229 cast upon the court, and it would require much more precise language than ¡can be found in the Code to convince me .that the Legislature intended to cast upon the court an obligation to enter a judgment of divorce, although convinced that the testimony did not warrant the finding that the party against whom the decree was to be entered had been guilty of the offense charged. The requirement tliat the *199decree shall be entered only by direction of the court seems to necessarily imply that the court is to exercise some judgment in the matter. Otherwise, great injustice might be done to a.perfectly innocent person. The present case affords a striking instance. The defendant and the corespondent, one a hard-working woman and a mother, and the other a clergyman, have been found by the referee to have been guilty of adultery thirteen years ago, and upon palpably insufficient and unconvincing evidence. The court below rightly refused to place the sanction of the court upon the referee’s report by directing a judgment to be entered upon it. If the court at Special Term had been bound to enter a decree in accordance with the findings of the referee, while the judgment would undoubtedly have been reversed upon appeal, the apparently innocent defendant and corespondent would have been obliged, pending the hearing of the appeal, to have borne the stigma of a solemn judgment of the Supreme Court conclusively establishing their guilt. It was dóubt-' less just such a result as this, as well as to protect the public interest, that the Legislature forbade the entry of a decree, as a matter of course* upon a referee’s report in an action for divorce, and provided that the court, as well as the referee, must be satisfied that the judgment warranted a decree before one could be entered. The court cannot enter a judgment contrary, to that advised by the referee, for such a judgment would be without findings or decisions to support it. The only practicable course, therefore, is that advised by Hr. Justice Ingraham, to order a new trial before another referee. This was the practice in the Court of Chancery when the court was dissatisfied with the verdict of a jury and refused to enter judgment therein. *(Ferguson*v. Ferguson, *supra.)*

concurred.

Order modified as directed in opinion, and as so modified affirmed, without costs. Settle order on notice.