
    Simmons vs. Simmons.
    1. In an action for a divorce, an order will not be granted referring the action to a referee “to try ami determine the issues therein,” though the attorneys for the respective parties sign a stipulation consenting to such order.
    2. The court ought not, in any case, to neglect its obligation as the guardian of the rights of married women, so far as to delegate the power to hear and determine the issues upon a careful consideration of the evidence to others.
    (Before Barbour, J. at special term,
    December, 1864.)
    Motion for the appointment of a referee to hear and determine.
   Barbour, J.

This is an action brought by the wife against her husband, for a divorce a vinculo, and for alimony. A motion is now made for the appointment of a referee to hear and determine, which application is founded upon a written stipulation of the attorneys of the respective parties, consenting that “ this action may be referred to a referee to try and determine the issues therein’’

As the Code now stands, a report of a referee upon the whole issue, is to stand as the decision of the court, and judgment may be entered thereon, by the attorney, without any examination or confirmation by the court. (Gode, § 272.)

It may well be doubted whether, under the peculiar wording of this stipulation, the proposed referee would have any power to award alimony to the plaintiff, notwithstanding he should arrive at the conclusion that the offense complained of had been committed, and that a judgment of divorce ought to be granted. It will not be necessary to consider that question, however, inasmuch as I am entirely satisfied upon other grounds that the order asked for would, be improper. It has long been the practice of the court to refer actions of this class to referees to take and report the proofs, with their Opinion thereon. This reserves to the court the power of determining in divorce cases, in which there is no answer denying the charges of the complaint, or when a jury trial has been waived, whether the offense complained of has been committed, and, also, what, if any, alimony should be awarded.

Upon a careful examination of the statutes and practice, both before and since the adoption of the Code, and on consultation with my brethren, I am satisfied that the court ought not, in any case, to divest itself of its power, and its obligation as the guardian of the rights of married women, to hear and determine the issues, upon a careful consideration of the evidence.

The motion must, therefore, be denied.  