
    John Bauer, Plaintiff, v. Clara Bauer, Defendant.
    (Supreme Court, Albany Special Term,
    February, 1904.)
    Reference in divorce — New trial before a new referee where confirmation of the report has been refused — Additional counsel fee for new trial
    Where the parties to an action for a divorce have stipulated that it be tried before a referee and the Special Term has, as it may, refused to confirm his report, neither party can enter judgment against the other, there must be a new trial, and to that end the order of reference must be amended so as to appoint a new referee.
    The court granted the wife a further allowance for counsel fees on the new trial.
    This is an action for divorce upon the ground of adultery. By stipulation of the parties it was agreed that such case should he tried before a referee, whereupon the court, at Special Term, appointed a referee to hear and determine the same.
    The referee found in favor of the defendant. The court, at Special Term, refused to confirm the report of the referee. The plaintiff now moves for the appointment of a new referee to hear and determine such action.
    Daniel 1ST aylon, Jr. (Eugene D. Flanigan, of counsel), for plaintiff.
    Lucien Tuffs (James 0. Matthews, of counsel), for defendant.
   Hebbick, J.

It was within the power of the Special Term to refuse to confirm the report of the referee, but it has no power to direct judgment contrary to the report of the referee. Gorham v. Gorham, 40 App. Div. 564; Goldner v. Goldner, 49 id. 395.

While this authority of the court to refuse to confirm the report of the referee seems to be well settled, the practice as to future proceedings does not appear to be settled. In each of the cases referred to the parties "were directed to take such proceedings as they might be advised, without any intimation as to what such proceedings should be. It seems to me that the case is in the same position as where a case has been tried before a jury, and the jury have failed to agree.

Heither party can enter a judgment against the other. The plaintiff cannot be called upon to discontinue his action and commence another; it is a case for a new trial.

The parties have stipulated that the case shall be tried before a referee. The question presented here is whether such new trial shall be before the same referee or before a new one. The practice of causing such rehearing to be had before the same referee has been condemned in this department in the case of Matthews v. Matthews, 53 Hun, 244.

It is no reflection upon the referee who previously heard the case to send it to another one. It is the almost universal practice pursued where a new trial is granted upon the report of a.referee.

A person who has once tried and determined a case cannot come to a rehearing thereof with that unbiased and virgin mind that is to be desired where a question of fact is to be passed upon.

The order of reference heretofore granted is, therefore, vacated, so far as it designates the referee, and a new referee will he appointed to hear and determine all the issues involved in this action.

For the purpose of enabling the defendant to defend herself upon the former trial an allowance for the services of counsel was granted. Inasmuch as she has now to meet the expense of another trial, a further allowance for counsel fee in the sum of $100 will be granted.

The attorney for the plaintiff may prepare an order in accordance with the terms of this memorandum, the name of the referee to be inserted by the court upon presentation of the order.

Ordered accordingly.  