Lyvers v. Lyvers

232 A.D. 872 | N.Y. App. Div. | 1931

Judgment and order so far as appealed from affirmed, without costs of this appeal to either party All concur, except Sears, P. J., who votes for reversal of the order and of the judgment, so far as appealed from, on the law and without prejudice to the entry by plaintiff of judgment on the referee’s report, in accordance with section 1174 of the Civil Practice Act;^* except also Crouch, J., who votes for reversal on the following grounds: (a) That the weight of the evidence sustains the findings of the referee; (b) that the Special Term, having referred the case to an official referee to hear, try and determine the issues, including the issue of custody, is without power to vary the decision of the referee; and (c) that even though a motion to confirm was proper, the authority of the Special Term was limited to confirming or rejecting the referee’s decision in toto. Present — Sears, P. J., Crouch, Edgcomb, Thompson and Crosby, JJ.

* Amd. by Laws of 1927, chap. 220.— [Rep.