177 Misc. 923 | N.Y. Sup. Ct. | 1942
Being an action for divorce, the plaintiff was required to prove the material allegations of her complaint notwithstanding the defendant’s default in appearing and pleading. (Civ. Prac. Act, § 1150.) Instead of taking this testimony at the Special Term, the Special Term referred the issues to an official referee to hear and determine. This practice is authorized by sections 469 and 1174 of the Civil Practice Act and rule 282 of the Rules of Civil Practice and section 117 of the Judiciary Law. The proof on the default has been taken before the official referee, who has made his report, stating his findings of fact and conclusions of law to the effect that the plaintiff is entitled to an interlocutory judgment of divorce and awarding to her the custody of the issue of the marriage. Instead of applying to the referee to sign the judgment, plaintiff’s counsel has applied to the Special Term. Such practice would have been proper if the reference had been one to hear and report. The rule is otherwise where it is to hear and determine. It is expressly provided by section 1174 of the Civil Practice Act that in actions for divorce, separation or annulment “ judgment may be taken, of course, upon the referee’s report.” The practice in this regard does not differ from references to hear and determine other types of action. (Rules Civ. Prac. rule 198.) The attention of the court has been drawn to the second paragraph of rule 283, stating: “ No judgment in an action for a divorce shall be entered except by special direction of the court.” That does not prevent judgment from being entered upon the official referee’s report where the whole issue has been referred to him to try and determine. Under such circumstances, the official referee acts for the court. The report of the referee, like the decision of the court where there has been no reference, is the special direction of the court which the rule requires. No other construction is possible in view of section 1174 of the Civil Practice Act, which, even if there were a conflict in meaning, would take precedence over a rule of practice. Decisions to the contrary may be found prior to the amendment of section 1174 by chapter
The Supreme Court is authorized to refer to official referees questions relating to the custody of children as incidental to the determination of matrimonial actions (Matter of Brock, 245 App. Div. 5), which is not distinguished by Decker v. Canzoneri (256 App. Div. 68, 72) in any particular relevant to the present action. Subsequent changes in custody would not come under the same reference.
The plaintiff’s application to the Special Term to sign the interlocutory judgment of divorce is denied. If it is to be signed by any officer other than the county clerk, it should be signed by the official referee.