
    THOMAS H. HARDING, Plaintiff and Appellant, v. JANE E. HARDING, Defendant and Respondent.
    divorces.
    Notwithstanding the determination of the issues by the referee, in favor of the divorce, the court, in the proper exercise of its supervisory power, upon the hearing of exceptions to the report, may withhold judgment of divorce upon the ground of insufficiency of proof of the alleged adultery, as also for the reason that there was sufficient evidence of condonation.
    But the court cannot on this hearing of the motion to confirm the report, and the exceptions thereto, dismiss the plaintiff’s complaint upon the merits.
    Where a party excepts to a report and brings those exceptions to a hearing, the motion is substantially a motion for a new trial, and the party making it is not entitled to relief exceeding ' that which is usually awarded to a party successfully moving for a new trial on a case or exceptions under section 265 of the Code, namely : No absolute judgment should be given where the question is one that can be determined by further proof; but an order should be entered (if it is a case for a new trial), setting aside the report, vacating the order of reference, and ordering a new trial of the issues, thus leaving the contesting parties free to select any of the modes of trial prescribed by the Code. In a case where no answer has been made, nor issue joined, but only a reference to take testimony and report, on the coming in of the report, the court may send back the report to the referee, with directions to take further proof, if the court deem the proofs insufficient.
    In this case the court affirms that part of the order of the court below that denies plaintiff’s motion for the confirmation of the report, but modifies that part of the order dismissing the complaint on the merits, and directs an order to the effect of setting aside the report, vacating the order of reference, and ordering a new trial of the issues, with costs to the defendant to abide the event, and a reversal of the judgment entered upon the dismissal of the complaint.
    
      
      Decided, June 25, 1877.
    Dormer- practice of the court of chancery in divorce cases reviewed and compared with the present practice.
    The statutes, practice and rules relating to divorces fully discussed in Sullivan v. Sullivan, 41 ID. T. Super. Ot. (9 J. & S.) 59, and in Blott v. Rider, 47 How. Pr. 90.
    Before Sedgwick, Speir and Freedman, JJ.
    The action is brought to dissolve marriage on the ground of adultery of the defendant with one William Zandt.
    —The answer denies the adultery and alleges con-donation. Upon consent an order of reference was made to hear and determine all the issues. The referee reported in favor of the plaintiff upon all the issues. The defendant duly filed her exceptions to the referee’s report. The plaintiff moved upon the referee’s report and the testimony to confirm such report. The defendant moved at the same time upon the exceptions, report and testimony, to vacate such report, and for further relief. Defendant’s motion was granted and plaintiff’s motion denied. Upon the settlement of the order defendant’s attorney made default, and plaintiff’s attorney entered. an order recommitting the report and testimony to the referee. Upon motion this default was opened, and after full argument an order was made dismissing the complaint upon the merits. A decree was entered accordingly. Plaintiff appealed from the order of dismissal and the judgment entered thereon.
    
      James M. Smith, of counsel for appellant, urged :
    —That the issues in the case were referred to the referee to hear and determine the same, not to take testimony and report the same to the court, as was the chancery practice where such matters were sent to a master in chancery. The report of the referee in this case, like the verdict of a jury in a case of conflicting evidence, is conclusive as to questions of fact. He takes the testimony, sees and hears the witnesses, and is quite as well able as a jury to come to a correct conclusion upon the facts (Davis v. Allen, 3 N. Y. [3 Coms.] 168 ; Ritter v. Cushman, 35 How. Pr. 248 ; Hoagland v. Wight, 7 Bos. 394). The rule of the court that no judgment in an action for divorce shall be entered except upon the special direction of the court, was adopted doubtless with the object of preventing any possible fraud or collusion of the parties. It never was intended, that a judge, sitting at special term, should have the powers of an appellate court, to decide upon the weight of evidence, in a case where there was a conflict of evidence, and to review exceptions in a case after a referee in a contested trial to whom the issues have been referred to hear and determine, and before whom a long and careful trial has been had, has made his decision. The statute provides for a trial by a referee, and no rule can alter that statute. In Waterman v. Waterman, 37 How. Pr. 43, the court say: “The Code does not allow of a reference to take the evidence and report it to the court, with the opinion of the referee merely, nor of any reference, except for a trial of the issue in a case where an issue has been joined in the action. It is a part of the system inaugurated by the present constitution (art. 6, sec. 10)—that the former practice in equity suits by evidence taken before an examiner, and not in the presence of the tribunal deciding the issues, should be done away, and it is only in cases where no issue has been joined, or where some interlocutory question is involved, that a reference to take and report evidence is not allowable ” (Code, §§ 271, 246). Same case, p. 40: “It is true that the authority of this court to grant divorces is derived from the statute. The title in the revised statutes, which confers the authority, shall be exercised by the ordinary proceedings in a chancery suit, except when it makes specific provisions to the contrary (2 R. S. 142, 149, 1st Ed.). Under the Code, the requirement that the facts contested by the pleadings shall be tried by a jury is modified by section 253 as follows : “An issue of fact in an action for a divorce from the marriage contract on the ground of adultery must be tried by a jury, unless a jury trial be waived as provided in section 266, or a reference be ordered as provided by sections 270, 271. Here is a clear authority to dispense with a jury trial and substitute a trial, by the court or referee.” The referee takes the place of the court or jury, and the report of a referee in a case at issue should be confirmed, leaving the party defeated to his or her remedy of appeal. The case of Renwick v. Renwick, cited by the chief justice, in 10 Paige, 420, in support of the doctrine “ that, no matter what may have been decided by the referee, the court must finally determine” has no application to this case, and does not in the slightest degree militate against the propositions we have set forth under this point. That case was decided in 1843 under the chancery practice. Ho defense was interposed, and the matters were referred to a master in chancery, to take proof of the facts and report the same, with his opinion ; not to hear and determine, as is now the practice. The case of Van Epps v. Van Epps, in 6 Barb. 320, also cited by the chief justice, was also under the chancery practice (1843). The case of Merrill v. Merrill, 11 Abb. N. S. 74, sustains our position. Judge Jones says: “When an issue is joined, that issue must be disposed of in some way authorized by the law. It can be disposed of only by a trial and there are but three modes of trial: one by jury, and one by the court, and one by a referee (Code, §§ 253, 254, 255). When issues joined in the cause are referred, the referee must determine the issue. The report of the referee should therefore have been confirmed, leaving the defendant to seek her remedy by appeal if she so desired. There are no exceptions in the case, taken by her, which are at all tenable. While the appellant insists that the only proper course for the learned chief justice who heard the motion, to pursue, was to confirm the report, still if there was any irregularity or any requirement of the statute which had not been complied with, the only other order that the court at special term could make was an order recommitting the report and testimony of the refereé to take further proof of the facts, and the order of October 16, 1876, was therefore proper, and should have been allowed to stand. The practice is the same whether the cause be submitted on the report without an appearance by the defendant, or on argument of exceptions to the report (2 Van Santvoord’s Equity Practice [2nd Ed.] 240). The order of January 27, 1877, vacating the order of October 16, 1877, denying the plaintiff’s motion, and dismissing his complaint on the merits, and the judgment thereon of March 5, 1877, both of which have been appealed from, should be set aside, and an order entered confirming the referee’s report, leaving the defendant to her appeal therefrom. Under the statute (2 R. S. 145, § 40) “the court may award a new or further trial of such issue, as often as justice shall seem to require.” If this plaintiff is not entitled to his judgment absolute, justice certainly requires that a new trial should be ordered.
    
      George Gallagher, of counsel, for respondent, urged :
    —That the court, at a special term, had full power to vacate the referee’s report and to dismiss the complaint on the merits of the case. 1. A motion to this effect had regularly been made, and notwithstanding the referring of all the issues to the referee, to hear and determine, the court still retained its supervisory power (Sullivan v. Sullivan, 9 Jones & S. 519; see also opinion of the chief justice, and cases cited). The appellant assumes the position that the court cannot malte any decree at all, should it, in the exercise of its supervisory powers, consider that the findings of the referee were improper ; that it must in such case invariably recommit the report. Suppose this to be done, once and repeatedly—say fifty times, and still the same report is sent in, and the court still considers the findings unsupported by the testimony, though the merits have been fully and exhaustively developed, must there never be a final decree? must there be a perpetual game of battledore between the court and the referee ? When can a final decree be, made ? “ When all the facts and circumstances, material and necessary to a complete explanation of the matters in litigation are brought before the court, and so fully and clearly ascertained on both sides, that the court is enabled, upon a full consideration of the case made out and relied on by each party, finally to deter- • mine between them, according to equity and good conscience” (1 Wait Pr. 438). 2. The statute, in express language, authorizes a dismissal of the complaint when forgiveness is shown. Supposing the appellate court to hold broadly that in an action for divorce on the ground of adultery, where all the issues are referred, the court, at special term, has no power to give judgment contrary to the findings of the referee upon the issue of adultery, it must make an exception when the defense of condonation has been established. The statute says : “Although the fact of adultery be established, the court may deny a divorce in the following cases :......2nd. Where the offense shall be forgiven, &c.” (3 R. S. [5th Ed.] 236, § 55). The learned chief justice, in his opinion, says : “ The proof of the forgiveness by the plaintiff of the alleged offense of defendant is so fully in accordance with the statute that, even if the defendant had committed the offense, the plaintiff could not maintain his suitand the court, therefore, by virtue of the power conferred by statute, denied the divorce—i. e., dismissed the complaint. This power to deny a divorce is clearly conferred upon the court, and not upon the referee. The opinion of Mr. Justice Monell, in Amory v. Amory (6 Robt. 516), is analogous. Though the appellate court see fit to vacate and reverse the order and judgment appealed from, it would not be proper to go further and confirm the report of the referee, and give judgment in favor of the plaintiff. Though the appellate court should hold that an error was made at special term, and that the court exceeded its powers in dismissing the complaint, even then the plaintiff should not have a new trial. The interests of justice do not require it, and from the merits of the case, the plaintiff does not deserve it.
   By the Court. —Freedman, J.

—In Sullivan v. Sullivan, 41 N. Y. Superior Ct. (9 J. & S.) 519; and Blott v. Rider, 47 How. Pr. 90, the policy of the statute relating to the granting of divorces, the reason for the enactment of the ninety-second rule, and the practice on reference of the issues, have been fully discussed.

The order of reference in the case at bar was in all respects regular. But the court at special term, in the exercise of its supervisory power, saw fit to withhold judgment of divorce notwithstanding the issues had been determined by the referee in favor of the plaintiff. The only question, therefore, which is open for review is whether the power was properly exercised upon the facts before the court.

Upon examination of the testimony I am satisfied that upon the ground of insufficiency of proof of the alleged adultery, as well as for the reason that, even in case of adultery, there was evidence showing condonation, the court below was fully justified in denying plaintiff’s motion for confirmation of the report and in sustaining defendant’s exceptions.

But, in absolutely dismissing plaintiff’s complaint upon the merits, the court went too far.

The defendant had excepted to the report and brought the exceptions to a hearing. Her motion was substantially a motion for a new trial, and though she was not bound to make it on a case prepared and settled as if the trial had been had by jury, she was, on the other hand, not entitled to relief exceeding that which is usually awarded to a party successfully moving for a new, trial on a case or exceptions under section 265 of the Code. In the last-mentioned case no absolute judgment is given when the question is one that can be obviated by proof, but the order simply sustains the exceptions, if any there, be, and the ruling made or verdict rendered at the trial is set aside and a new trial ordered with costs to the moving party to abide the event.

Formerly in an action for divorce on the ground of adultery, the court of chancery directed a feigned issue to be made up for the trial of the facts contested by the pleadings, and the court was expressly empowered by statute (2 R. S. 145, § 40) to award a new or further trial of such issue as often as justice! should seem to require. Under our present system of procedure and the rules of the courts specially applicable to actions for divorce, the trial of the issue of adultery by a referee maybe looked upon as one of the modes of trial which have been substituted for the trial by feigned issue, and hence in this class of cases the court at special term does possess the power to order a new trial.

The power, as already stated, should be exercised as nearly as possible in conformity with the principles which control on a motion for a new trial on a case or exceptions. Consequently, if the exceptions are sustained and the question is capable of being obviated by proof, no absolute judgment should be directed, but a new trial ordered. And if it is a case for a new trial, the report should not be sent back to the referee with directions to take further proof, as may be done in a case of no answer, but the report should be set aside, the order of reference vacated, and a new trial of the issues ordered. In such case the contesting parties are again free to select any one of the three modes of trial prescribed by the Code.

That part of the order of January 27, 1877, which denies plaintiff’s motion for confirmation of the report, should be affirmed; but the remaining part should be modified so as to provide that the report be set aside, the order of reference vacated and a new trial of the issues had, with costs to the defendant to abide the event. The judgment of March 5, 1877, should be reversed altogether.

Sedgwick and Speer, JJ., concurred.  