
    Elizabeth Phillips, Plaintiff, v. Harvey Phillips, Defendant.
    (Supreme Court, Fulton Special Term,
    November, 1904.)
    Divorce — Rule 76 of the General Rules of Practice is not inconsistent with section 1774 of the Code of Civil Procedure — Duty of the clerk as to the entry of final judgment papers to he furnished to the court.
    Rule 76 of the General Rules of Practice which provides that “ no judgment in an action for divorce shall be entered except upon the special direction of the court ” is not inconsistent with section 1774 of the Code of Civil Procedure which provides that “ after the expiration of said period of three months, final judgment shall be entered as of course upon said decision or report unless for sufficient cause the court in the meantime shall have otherwise ordered ”. '
    
    
      ■ The interlocutory judgment in such an action may contain the special directions required by Rule 76 for the entry of the final judgment and when it does contain such directions they are sufficient authority for the clerk to enter as of course the final judgment pursuant thereto.
    In such case the clerk when entering final judgment may take notice of the records contained in his office but should, however, require proof by affidavit that no order of 'the court has intervened since the filing of the interlocutory judgment.
    When application for final judgment in a divorce action is made to the court, either pursuant to the directions contained in the interlocutory judgment or, in the absence of such directions, in compliance with Rule 76, the presiding justice may not be presumed to have knowledge of the records in the clerk’s office and proof of all the necessary facts must be presented to him on such an application.
    Application by plaintiff for final judgment in divorce.
    Daniel Haylon, Jr., for plaintiff.
    Ho other appearance.
   Spencer, J.

The provision of Supreme Court Rule 76, which provides that: “No judgment in an action for a divorce shall he entered except upon the special direction of the court,” is not inconsistent with the provision of section 1774 of the Code of Civil Procedure, which directs that: “After the expiration of said period of three months final judgment shall he entered as of course upon said decision or report unless for sufficient cause the court in the meantime shall have otherwise ordered.”

The interlocutory judgment in divorce actions may contain the special directions as required by Rule 76 for the entry of the final judgment, and when it contains such directions they are sufficient authority for the clerk to enter as of course the final judgment pursuant thereto. In so doing, he may, without doubt, take notice of such records as are contained in his office, to wit: The filing of the decision or report and the date of such filing, and the entry of the interlocutory judgment and its provisions, together with the date of such entry. He should, however, require proof by affidavit that no order of the court has intervened.

When application for final judgment is made to the court either pursuant to directions contained in the interlocutory judgment, or in the absence of such directions in compliance with the provisions of Rule 76, the presiding justice may not be presumed to have knowledge of the records in the clerk’s office, and proof of all the facts necessary must be presented in support of the application. The provisions of section 1774 of the Code of Civil Procedure require that before final judgment is granted or entered it shall be made to appear that the decision or report has been filed and the interlocutory judgment entered at least three months prior to the application. The court may not infer from the entry of the interlocutory judgment that the decision has been filed.

The application herein is, therefore, returned for proof of the filing of the decision.

Application returned for proof of filing of decision.  