
    Matthews v. Matthews.
    
      (Supreme Court, General Term, Third Department.
    
    July 6, 1889.)
    1. Divorce—Reference—Power to Recommit Case.
    Under Code Civil Proc. N. T. § 1239, which provides that where a reference is made in a divorce suit judgment cannot be taken as of course on the referee’s report, but must be rendered by the court, after a referee, “with power to take the testimony and report the same with his findings of fact, ” has reported defendant not guilty of the adultery charged, the court has no power to set aside the report, and send back the case to the referee to take further testimony.
    2. Same—Witness—Cross-Examination.
    In a suit for divorce for adultery, where the cross-examination of a witness who has testified to defendant’s guilt is suspended, on agreement between the parties and the witness that he shall be present when recalled for further cross-examinatian, and the witness fails to appear when recalled, it is reversible error to refuse to strike out the testimony of such witness.
    Appeal from special term, Washington county.
    Action for divorce by John W. Matthews against Zoe L. Matthews. Judgment, for plaintiff. Defendant appeals. Code Civil Proc. IT. Y. § 1229, pro-
    
      vides that, where a reference is made in a divorce suit, judgment cannot be taken as of course on the referee’s report, but must be rendered by the court.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      James Averill, for appellant. George Richards, for respondent.
   Learned, P. J.

This an action for divorce on the ground of adultery. The answer denies the adultery of defendant, and avers adultery of plaintiff; also denies that plaintiff has not voluntarily cohabited with defendant since the discovery. A supplemental answer sets up that the plaintiff has condoned the alleged adultery. Another supplemental answer sets up another instance of adultery on plaintiff’s part. The allegations of' the answers are denied in replies. On the stipulation of the parties an order was made appointing a referee, “ with power to take the testimony, and report the same, with his findings of fact, to the court.” Testimony was taken before him, and he reported that the defendant did not commit a'dultery as alleged. The special term set aside the report, and sent the case back to the •referee, with orders to him to take further testimony. No further testimony was given by plaintiff. Thereupon the referee made another report that the ■defendant did commit adultery as alleged; that the plaintiff did not commit adultery as alleged in the several answers, and had not condoned the offense; .and that plaintiff should have judgment. The special term confirmed the report, and granted judgment.

The evil of the practice followed in this case is apparent from the fact that by his first report the referee found that the defendant had not committed the .alleged adultery, and by his second report, without any further evidence on plaintiff’s behalf, he found that she had. The additional evidence on the second hearing related only to plaintiff’s alleged adultery. So that we have the same referee coming to a different conclusion, on the same question, and upon the same proof. Apractice which permits this is not to be sanctioned. Under the decision of McCleary v. McCleary, 30 Hun, 154, we must hold that the first order of reference, though badly expressed, was in fact a reference to hear and determine. It was not a mere taking of testimony by consent out of court to be used on a trial; for the referee was to report his findings of fact. That gave him the power to try the questions of fact made by the issues. By section 1229, judgment cannot be entered on the report of course, but the report and the testimony must be presented to the court, and judgment can be granted only bythe court. The court cannot set aside the report, and grant a judgment in favor of the party against whom the referee has reported. Schroeter v. Schroeter, 23 Hun, 230. In Ross v. Ross, 31 Hun, 140, it is shown that after a trial by a referee in a divorce action there is no power in the court to direct the referee to take further proof, and then review his decision and make a new report. We are not willing to hold that the court may not, on the ground of insufficient proof, refuse a judgment of divorce, when the referee has decided that it should be granted, because we suppose that toe power given by section 1229 is for the protection of the public, and therefore that the court may say: “The adultery is not proved, even though the court cannot discover actual collusion.” If the unsuccessful party can have a case sent back for further testimony and findings, much injustice may be done by preparing evidence to meet toe emergency. It is important that, when the parties have rested and the tribunal has decided, the decision should stand. It is not clear on whose motion the cause was thus sent back. The defendant had succeeded; and yet, if the plaintiff wanted a further hearing, he at least offered no further testimony; so that he must have relied on convincing the referee that he had come to an erroneous conclusion on the first hearing.

If there had been no errors on the trial, we might be obliged to reverse the judgment, and give judgment for the defendant on the first report, unless (as stated in the points) the report was sent back by consent. But on the hear-

ing before the referee, John Sew ton, the person with whom the alleged adultery of defendant was committed, was examined as a witness for plaintiff. He testified to the adultery. He was partly cross-examined by defendant, and then his cross-examination was suspended on an agreement between the parties and the witness that when again called by defendant for cross-examination he would be present. He was afterwards recalled by defendant for further cross-examination, and failed to appear, and it was shown that he had left the state. The defendant then moved to strike out the evidence of Hewton for his failure to appear and to be cross-examined. The motion was denied, and defendant excepted. This was error. People v. Cole, 43 N. Y. 508; Rutherford v. Holmes, 66 N. Y. 374; Kissam v. Forrest, 25 Wend. 651; Price v. Wilson, 67 Barb. 9.

The testimony of this witness was of such importance that this error can-nor be overlooked. The testimony of the defendant, denying the alleged adultery, was excluded. This may have been correct under the laws as thus existing, but we refer to section 831 as now amended. The notice of appeal states that it is intended to bring i)p also an order refusing to punish plaintiff for non-payment of alimony. We find no such order, although the subject is mentioned in the opinion of the learned justice. The judgment is reversed, referee discharged, new trial ordered, costs to abide event; the defendant to be at liberty to take such action as she may be advised in respect to compelling the payment of alimony.  