95 N.Y.S. 623 | N.Y. App. Div. | 1905
This action was brought to procure an absolute divorce on statutory grounds. After issue had been joined the matter was sent to a referee to hear and determine, and after protracted hearings the case was finally submitted to- him on the 9 th of August, 1904. On the seventh of October following he delivered an alleged report to the plaintiff’s attorney, which was filed in the. proper clerk’s office on the thirteenth off the same month. On the tenth of October (more than sixty days after the case was finally submitted to the referee) the defendant’s attorney attempted to terminate the reference, and subsequently moved to sustain the exceptions filed to the report and to vacate the reference, while the plaintiff’s attorney moved to overrule the exceptions and for judgment on the report. Both motions were heard together. The exceptions were o'verruled, the motion to vacate denied, the motion to confirm granted and an interlocutory judgment entered adjudging that the plaintiff was entitled to a final judgment dissolving the marriage contract, awarding her alimony and the custody of a son, the only issue of the marriage, and defendant has appealed.
We are of the opinion that the judgment and order overruling the exceptions should be reversed. The alleged report of the referee did not conform to section 1022 of the Code of Civil Procedure as amended by chapter 85 of the Laws of 1903, and it was insufficient to constitute the basis of a valid judgment. This section provides that the decision of the court or the report of a referee .upon the trial of the whole issues of fact must state separately the facts found and the conclusions of law. The word “must” was substituted by the amendment of 1903 for the word “ may,” which had been in the section since 1894. (See Laws of 1894, chap. 688; Laws of 1895, chap. 946.) The amendment of 1903 went into effect on the first day of September of that year, and was, therefore, applicable to the report here made. This substitution indicates a legislative intent as to what a decision or report should contain, and makes it imperative upon the court, or referee to state separately the facts found and conclusions of law, and if the same be not so stated, the report or decision is insufficient to support a judgment. This report did not separately state the facts found and conclusions of law, nor did it in form find either. It is directed to the Supreme
The order of reference required the referee to determine the issues involved. This he did not do, except in so far as that may be inferred from the conclusion of his report, in which he directs judgment for the plaintiff, and this is insufficient. It commences with the words, “I, the undersigned', as referee, report,” and ends with the direction of judgment for the plaintiff. The referee does not state anywhere in his report that he has found any facts as’such,, or any conclusions of law. There are no facts separately stated, numbered and designated as findings of fact, nor are-there any conclusions of law separately stated, numbered and designated as such, and for aught that appears the report is a mere expression of the opinion of the referee instead of findings as the order of reference and the statute require. The report was, unauthorized, ineffectual and cannot form the basis of a valid judgment. The defendant’s exceptions, therefore, should have been sustained
A report such as the statute requires not having been filed with-the clerk or delivered to the attorney for the plaintiff within sixty days fromithe time when the cause was finally submitted, the defendant’s attorney, after serving the notice- required, moved to vacate fhe reference. The motion should have been granted. Section 3.019 of the Code.of Civil Procedure provides that upon the trial- . by a referee of an issue of fact or an issue of law, the referee’s
A valid report was not made within sixty days after the cause was finally submitted, nor was one filed or delivered before the defendant made his motion to terminate the reference. The defendant, therefore, was entitled to have his motion granted. •
The issues involved were sharply contested by the respective parties, and the evidence taken constitutes several hundred printed pages. The conclusion reached, however, renders it unnecessary to pass upon the merits or determine whether the evidence is sufficient to justify a finding that the defendant has committed adultery as alleged in the complaint. ¡Numerous errors are alleged, both in the exclusion and reception of evidence, some of which, at least, would require very.serious consideration, but inasmuch as there must be a new trial and these' questions may not be again presented, we have deemed it unnecessary to pass upon all of them, contenting ourselves with calling attention to only a few. One of the principal witnesses against the defendant was Jordan. He was shown to have been friendly with the plaintiff and hostile to the defendant. Prior to the commencement of this action, in another proceeding between the same parties, Jordan made an affidavit, which was verified on the 6th of ¡November, 1902, in which he stated he had been very intimate with the defendant, had known his general habits, and knew of no instance in his entire career where the defendant had been guilty of any immoral act of any kind. A portion of the testimony which he gave tended to show familiar and improper relations with the corespondent prior to the time the affidavit was verified, and at the conclusion of the cross-examination the defendant sought to introduce the affidavit in evidence. This was excluded, because, according to the statement of the referee, “ The witness was .on the stand himself, and I cannot admit an affidavit of a witness not taken after judicial proceedings were commenced, when the witness was on the stand himself, the affidavit appearing to be
Defendant also sought to prove, by various questions on the cross-examination of Jordan, declarations, that he had made to the effect that he was trying to help plaintiff to get a divorce; that he ■ and the defendant had had disagreements over business matters, and he was trying to get even with him' by aiding the plaintiff. This testimony should have been admitted. Defendant had a right to show the state of feeling of Jordan, the interest he had taken in the litigation, what he had done with reference to procuring witnesses, or anything else relating to the subject-matter of the action^ to the end that the referee might intelligently pass upon the credibility of his testimony.
The judgment and order appealed from, therefore, must be reversed, the referee discharged, and a new trial ordered before another referee.
O’Brien, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
Judgment and order reversed and new trial ordered before another referee.
