
    Adaline Gorham, Respondent, v. Alonzo Gorham, Appellant.
    
      Eeferee’s report in an action fm' divorce—power of the Special Term over it.
    
    The Special Term is not required, under section 1229 oí the Code of Civil Procedure, to confirm the report of a referee appointed in an action for an absolute divorce, and to direct judgment accordingly, hut may refuse to confirm it, if the evidence certified does not support it satisfactorily to the conscience of the court.
    
      Semble, that the Special Term cannot direct a judgment contrary to the report of the referee.
    
      Appeal by the defendant, Alonzo Gorham, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the cleric of the county of Albany on the 27th day of May, 1898, denying the defendant’s motion to confirm the report of a referee appointed in an action for an absolute divorce.
    
      Richard O. Bassett, for the appellant.
    
      Arthur L. Andrews, for the respondent.
   Landon, J.:

The defendant by his answer, besides denying his own guilt, charged the plaintiff with guilt, and thereupon prayed for judgment for an absolute divorce in his own behalf. The referee appointed to hear and determine the issues reported against the plaintiff and in favor of the defendant, and that he was entitled to a judgment of divorce. The Special Term denied the motion of' the defendant to confirm the report and for judgment-, but did not direct judgment in favor of either party. Ho opinion was written, but we infer from an inspection of the case that the denial was based upon the learned court’s idea of the merits. There does not appear to be any ground to suspect fraud or collusion between the parties. The appellant contends that the Special Term had no power to refuse confirmation of the report upon the merits. There are cases to that effect. (Anonymous, 3 Abb. N. C. 161; Schroeter v. Schroeter, 23 Hun, 230; Ross v. Ross, 31 id. 140.) We are not satisfied that these cases give a proper construction to section 1229 of the Code of Civil Procedure. The argument in them is in effect that the reference is a trial; the trial is before the referee and not before the court; that the referee is authorized to hear and determine, and although he may not direct final judgment to he entered of course Upon his decision, yet if the court before which the report comes for confirmation should direct a different judgment, it- would he without trial and without the benefit of the presence of witnesses, and in despite of the trial and contrary to the findings of fact. Moreover the case could not be reviewed on appeal according to the methods prescribed by the Code. This reasoning would be satisfactory but for the result; this degrades the act of the Special Term in rendering judgment from a judicial function to a ministerial one, and sweeps away the safeguards which the exercise of the judicial funclion was intended to secure. We admit the force of the argument to the extent that the Special Term cannot direct a judgment contrary to the findings of the referee, but not to the extent that it must confirm the report and direct judgment accordingly. It must refuse to confirm the report if the evidence certified does not support it satisfactorily to the conscience of the court. The public has an interest in the marriage relation, as the courts have often remarked, and in directing judgment the court should be as watchful of the public interests as of those of the parties. It often happens that the party liberated by the judgment from the marriage relation marries again without waiting to see whether an appeal is to be taken, and when it is taken such remarriage is in some way suggested, and embarrasses the proper disposition of questions of discretion and those arising upon conflicting evidence.

The jurisdiction of the court to grant divorces is statutory. The Revised Statutes (2 R. S. 145, § 40) provided: “ If the offence charged he denied, the court shall direct a feigned issue to be made up for the trial of the facts" contested by the pleadings, by a jury * * * and may award a new or further trial of such issue as often as justice shall seem to require.” The verdict of the jury came before the court, and if it was challenged, the court examined the evidence, and if not satisfied with its justice, set it aside and granted a new trial. The court could not make a final decree except upon the verdict of the jury. (Ferguson v. Ferguson, 1 Barb. Ch. 604.) Under the Code of 1851, such an action with such an issue, the parties consenting, became referable (People v. McGinnis, 1 Park. Cr. Rep. 387) and has been so ever since. The Revised Statutes (2 R. S. 144, 145, §§ 36, 40, 41) enjoined the court from granting a divorce without satisfactory evidence of the facts.

In Blott v. Rider (48 How. Pr. 90) the court, after citing the rule, statutes and many cases, said : “ The injunction that no divorce shall be granted without satisfactory proof, that is, proof satisfactory to the conscience of the court, imposes the duty of passing upon the exddence of the facts. * * * The court must see that * * * the public is not prejudiced by the collusion of the parties, or the want of proof.” This viexv is expressly approved in Sullivan v. Sullivan (41 N. Y. Super. Ct. 519).

Rule 92 of the General Rules of Practice of 1874 provided: “Ho judgment in an action for a divorce shall be entered except upon the special direction of the court,” thus preserving the like supervision by the court over the reports of referees as had been exercised by the court over verdicts under the the Revised Statutes.

In 1877 section 1229 of the Code of Civil Procedure took effect and made such supervision statutory again. It should be read in connection with section 1228, which provides that in ordinary actions at law or in equity judgment may be entered upon the report of the referee appointed to hear and determine. Section 1229 then provides that “ In an action to annul a marriage or for a divorce or separation, judgment cannot be taken, of course, upon a referee’s report, as prescribed in the last section. * * * Where a reference is made in such an action, the testimony and the other proceedings upon the reference must be certified to the court by the referee with his report, and judgment must be rendered by the court.” It is manifest that under the present Code, as before it, the proof to justify a divorce must be satisfactory to the conscience of the court. If not satisfactory, it should refuse to confirm. It is said in Moller v. Moller (115 N. Y. 466): “ A divorce should not be granted without evidence which is, after careful scrutiny, satisfactory and can command the confidence of a careful, prudent and cautious judge.”

In Harding v. Harding (43 N. Y. Super. Ct. 33) the General Term approved the Special Term’s refusal, because of the insufficiency of proof, to confirm the referee’s report. In Matthews v. Matthews (53 Hun, 246) the court said: “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 the power given by section 1229 is for the protection of the public.” (See Reynolds v. Reynolds, 33 App. Div. 626.)

We are satisfied that the Special Term was justified in refusing to confirm the report upon the merits. What the further practice of either party, if aggrieved, may be, we cannot decide until the question is presented to us.

The order should be affirmed, with costs to the respondent.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  