208 A.D. 458 | N.Y. App. Div. | 1924
This action for a separation was tried at Special Term. At the close of the evidence the learned trial justice announced a decision in favor of the plaintiff, and stated: “I will hold this question of alimony; and if you two lawyers cannot agree upon it, on a proper showing I will order a reference to take proof, myself, as to what this man has.” The attorneys failed to agree upon the amount of alimony and the court, upon the ex parte application of the plaintiff, made an order of reference. An order to show cause was granted why the order of reference should not be vacated, and an order was entered refusing to vacate the order of reference. No appeal lies from the ex parte order and that appeal should be dismissed. The appeal from the order made upon notice is properly here. No reference was made in the complaint to the question of alimony except in the prayer for relief, wherein it was asked that suitable alimony should be awarded to the plaintiff. The answer was in effect a general denial.
It is urged by the appellant that the court at Special Term was without jurisdiction to make the order of reference. The order provided that it was “ for the purpose of inquiring and reporting what is a reasonable sum to allow said wife for her support.” In the case of Forrest v. Forrest (25 N. Y. 514) the court, referring to a similar order, wrote: “ The object of the reference, and the report of the referee, is to inform the conscience of the court; but it is the court, and not the referee, who adjudges the question as to what is a suitable allowance.” Section 467 of the Civil Practice Act provides: “ The court, of its own motion, or upon the application of either party, without the consent of the other,
It was decided by Chancellor Walworth in 1845 that the question of a proper allowance for alimony might be referred and the question sent to a master to report as to a proper allowance. (Cooledge v. Cooledge, 1 Barb. Ch. 77.) In Forrest v. Forrest (supra, 513) it was said: “ The usual course of the late Court of Chancery in such cases was to order a reference to ascertain, by the report of a master, the value of the defendant’s property, the circumstances of the parties respectively, and what would be a suitable allowance.” In Galusha v. Galusha (138 N. Y. 272), an action for a divorce, it' was said: “ The demand for alimony in a divorce suit is not an essential part of the cause of action. As described by Bishop it is merely an ' appendage ’ of the action. (§ 351, 6th ed.)
It seems clear that the Special Term had jurisdiction to grant the order appealed from. However, the practice should not be
The order should be affirmed, with costs and disbursements to the respondent.
All concur.
Appeal from first order of reference dismissed. Order denying motion to vacate order of reference affirmed, with ten dollars costs and disbursements.
See 2 Bish. Mar. & Div. (6th ed.) § 351.— [Rep.