
    Clara A. Galloway, Appellant, v. J. Armour Galloway, Respondent.
    
      Action for divorce—what circumstances tend to show collusion justifying, the court in refusing to confirm, a report in plaintiff’s favor—opportunity to the plaintiff to disprove collusion.
    
    On the hearing of a motion to confirm the report of a referee authorizing the entry of a judgment of absolute divorce, it is the duty of the court to examine the testimony, and, although the reference was to hear, try and determine, it may refuse to confirm the report unless it is satisfied upon the whole case that the divorce should be granted.
    On such a motion it appeared that the evidence satisfactorily established the commission of the offense by the defendant and that the plaintiff, when sworn as a witness, denied that the action was brought through connivance, privity or procurement. It further appeared, however, that the-defendant had interposed ■ an unverified answer denying the commission of adultery and that he offered no testimony in his defense and did not cross-examine the plaintiff’s witnesses except in some slight particulars which rather tended to strengthen the plaintiff’s case than to show a defense; that at the close of the hearing, the attorneys for the respective parties entered into a stipulation providing for the amount of the temporary alimony, the time at which it should be payable and that the amount thereof should be made permanent.
    
      Held, that the circumstances tending to show collusion were sufficiently strong to justify the court in refusing to confirm the report; that the court should either itself take testimony or send the case back to the referee, in order to afford the plaintiff an opportunity to show that there was, in fact, no collusion.
    Ingraham:, J., dissented on the ground that the court should have confirmed the report.
    Appeal by the plaintiff, Clara A. Galloway, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of January, 1904, denying the plaintiff’s motion to confirm the report of a referee in an action for divorce, a vinculo matrimonii.
    
    
      Charles A. Molloy, for the appellant.
   Hatch, J.:

The evidence adduced before the referee was sufficient to sustain the averments of the complaint, and in the absence of collusion between the parties it justified the findings of fact and conclusions of law which were made and authorized a judgment of divorce absolute as reported by. the referee. By the provisions of section 1229 of the Code of Civil Procedure such judgment may not be rendered until the testimony and. other proceedings upon the reference are certified to the court by the referee with his report, and judgment can only be rendered by the court. On the hearingupon the motion to confirm the court is required to examine the testimony, and although the reference is to hear, try and determine, the court may refuse to confirm the report unless upon the whole case it be satisfied that the divorce should be granted. The reasons for such holding are fully and satisfactorily set forth in Goldner v. Goldner (49 App. Div. 395) and Gorham v. Gorham (40 id. 564). While the evidence was satisfactory in establishment of the commission of the offense by the defendant, yet there are many circumstances which appear in connection with the method adopted to obtain evidence of the fact of its commission and of circumstances which occurred during the -course of the' trial before the referee which áre quite sufficient tó raise the suspicion of collusion between -the parties to obtain the judgment of divorce. While, the defendant interposed an answer denying the averments of the complaint ■respecting the commission of adultery, yet it was unverified, and ■ upon the trial- no cross-examination of the witnessess was made by the defendant’s attorney save in slight particulars', which rather tended to elicit information strengthening the plaintiff’s case than to show a defense. The referee examined the witnesses upon pertinent subjects at considerable length, and in so doing satisfactorily discharged his duties in the execution of the reference. The defendant offered no testimony in his defense. -At the close of the hearing before, the referee the attorneys for the respective parties entered into a stipulation providing for the amount of temporary alimony to be awarded, the time at which it should be payable and that the amount thereof should be made permanent, and the referee was authorized to pass upon and award the sum in his report.. The plaintiff was sworn upon the trial and answered the formal questions respecting connivance, privity, procurement, etc., and denied the same.' There is no evidence to show that she was in anywise con- ■ nected With or took part in procuring the testimony upon which the report was based. On the contrary, it satisfactorily appears' that ' the steps which were taken to procure such evidence were had through the instrumentality of a gentleman of character and standing. If the. suspicious circumstances, to which we have adverted, tending to show collusion had been absent, the report of the referee would doubtless have been confirmed and judgment directed to be ■entered thereon in conformity to law. We are of opinions however, that the circumstances were sufficiently strong respecting the collusion as to justify the court in refusing to confirm the report. If, however, there was in fact no collusion some opportunity should have ' been afforded to the plaintiff to show the same. ' The order denies confirmation of the report and makes no other disposition of the ■ matter. Under the circumstances • of this case we think that the ■learned court should have given the plaintiff an opportunity to . present proof either before itself or by sending the case back to the referee to take proof and report further upon such subject. As the matter now stands the plaintiff may doubtless' take further proceeding in the case bearing upon the subject of the issues. Such was the intimation of the court in Goldner v. Goldner (supra), but in ordinary course it should be with respect to some direction made by the court at Special Term.

We conclude, therefore, that the order appealed from should be affirmed, with leave given to apply at Special Term for leave to take such further proof and proceedings in the action as the plaintiff shall be advised; no "costs of this appeal allowed to either party. -

"Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred;. Ingraham, J., dissented.

Ingraham, J.

(dissenting):

I think that upon' the evidence before the referee the plaintiff was entitled to judgment.

Order affirmed, without costs, with- leave to plaintiff to apply to* Special Term for leave to take further proof, etc.  