86 N.Y.S. 1078 | N.Y. App. Div. | 1904
Lead Opinion
The evidence adduced before the referee was sufficient to sustain the averments of the complaint, and in the absence of collusion between the parties it justified the findings of fact and conclusions of law which were made and authorized a judgment of divorce absolute as reported by. the referee. By the provisions of section 1229 of the Code of Civil Procedure such judgment may not be rendered until the testimony and. other proceedings upon the reference are certified to the court by the referee with his report, and judgment can only be rendered by the court. On the hearingupon the motion to confirm the court is required to examine the testimony, and although the reference is to hear, try and determine, the court may refuse to confirm the report unless upon the whole case it be satisfied that the divorce should be granted. The reasons for such holding are fully and satisfactorily set forth in Goldner v. Goldner (49 App. Div. 395) and Gorham v. Gorham (40 id. 564). While the evidence was satisfactory in establishment of the commission of the offense by the defendant, yet there are many circumstances which appear in connection with the method adopted to obtain evidence of the fact of its commission and of circumstances
We conclude, therefore, that the order appealed from should be affirmed, with leave given to apply at Special Term for leave to take such further proof and proceedings in the action as the plaintiff shall be advised; no "costs of this appeal allowed to either party. -
"Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred;. Ingraham, J., dissented.
Dissenting Opinion
(dissenting):
I think that upon' the evidence before the referee the plaintiff was entitled to judgment.
Order affirmed, without costs, with- leave to plaintiff to apply to* Special Term for leave to take further proof, etc.