
    Bliss v. Bliss.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed Jane 7, 1886.)
    
    Reference—Divorce—Power of court to amend order of reference nunc pro tunc after report of referee.
    In an action for divorce where complaint charged defendant with adultery and asked for dissolution of marriage; the answer denied the allegations of the complaint and set up counter allegations of adultery and asked for a divorce a mneulo. The action being at issue, upon consent in writing it was referred to a, referee, “to take proof and report, with his opinion thereon, and also to take proof of service of summons and complaint.” Afterwards a supplemental answer was served by defendant and upon consent in writing of both attorneys, it was ordered: “That the issues raised by said supplemental answer and reply, be tried before the referee heretofore appointed, in like manner as if included in the original order of reference to him.” Testimony was taken on behalf of both parties before the referee, proposed findings and conclusions of law were submitted and passed upon and the referee rendered his report containing findings of fact and conclusions of law to the effect that plaintiff wtv entitled to an absolute divorce. Thereaiter upon motion of plaintiff’s counsel an order was entered amending said order of reference nunc pro tunc, so that the ordering part should read: “Ordered that the above entitled action and all the issues therein be and the same hereby awe referred to J. A. O., referee, to hear and determine the same, and report thereon, with all convenient speed.” On appeal from such order of amendment: Held, that as the intentions of the parties a-s expressed in their stipulations and orders entered thereon, and in all their subsequent proceedings was apparently to have the issues tried privately by a referee instead of in open court, tiie order amending the orders of reference so as to carry out that intention was correct and should be affirmed. Larremore, J., dissenting.
    Appeal by defendant from order of special term amending orders of reference nunc pro tunc so that they should read: “Ordered, that the above entitled action and all the issues therein be and the same hereby are referred to John A. Osborn, Esq., as referee, to hear and determine the same and report thereon with all convenient speed.”
    The first order of reference, made upon the original pleadings was: “ Ordered, that the above action be referred to John A. Osborn, Esq,, to take proof of the facts stated in the complaint and report to this court with all convenient speed with his opinion thereon; and also to take proof of the servi.ee of the summons and complaint upon this defendant.”
    The second order of reference, made when the supplemental answer was interposed was that “ the issues thus raised by supplemental answer and reply be tried before John A. Osborn, Esq., the referee heretofore appointed, herein in like manner as if included in the original order or reference.”
   J. F. Daly, J.

The intention of the parties as expressed, in their stipulations and the orders entered thereon and in all their subsequent proceedings was apparently to have the-issues tried privately by a referee instead of in open court- and the order appealed from amending the orders of reference so as to carry out that intention was correct and should, be affirmed.

The first order of reference was made upon a stipulation, in writing that the “right to a trial by jury be waived and that it be referred to a referee to be named by the court to-take proof and to report to this court.”

The reference was first suggested in a letter written before that time and when the cause was reached for trial on the-Calendar of the court, by the attorneys for the defendant- and appellant (who is now objecting to the amendment), to-the attorney of the plaintiff and respondent as follows: “We had hardly thought you were serious in pressing the trial of the Bliss case, but as you now seem inclined to do-so we would suggest that it is for the interest of both parties-that the cause should be referred to some suitable person.

If you approve of this we would be glad to have suggestions from you as to who that person snail be.”

A subsequent letter from the same writers says, “you are right in assuming that a reference had been decided upon, but before consenting to Judge Bosworth we must have our client acquiesce in the choice.”

After the entry of the order of reference a notice of trial was given by plaintiff and accepted by defendant, “that the above action will be brought on for trial before John A. Osborn, Esq., referee appointed by this court to hear and determine the matters in controversy between the parties in the above entitled action, at his office,” etc.

When the defendant afterwards obtained leave to serve her supplemental answer, her attorneys and the attorneys for the plaintiff entered into the following stipulation: “It is mutually stipulated that the supplemental answer heretofore served herein be received, that it be considered as ■denied by the reply already in, and that the issues thus raised be included in the order of reference already entered, and that an order to this effect be entered.” It was upon this stipulation that the second order of reference was "entered.

In a petition addressed to this court by defendant and appellant, while the action was pending before the referee for an allowance for the expenses of the action, she states that “the issues in this action, as raised by the original answer, were referred to John A. Osborn, Esq., as sole ref-c oe, to hear and determine the same on the 22d day of November, 1884. The issues raised by the supplemental answer have also been referred to him.”

Accompanying such petition is the affidavit of her attorney and counsel, Mr. Wheeler, which begins by stating, “I am counsel for the defendant, and have acted as such since the trial thereof began and prior thereto f ’ and repeatedly afterwards refers to the proceedings before the referee as the trial of the action. Accompanying said petition is the affidavit of Mr. Knevals, one of defendant’s counsel, stating, among other things, that the action “ is now and has been since the 20th day of January, 1885, on trial before the referee.”

Upon the decision of the action the defendant requested findings of fact and of law from the referee as upon a trial of the issues, and asked of him “judgment in her favor and against the plaintiff upon the merits,” and excepted in writing to his findings of fact and law. It is now her contention that the proceeding before the referee was not a trial, nor intended to be, but was intended merely for the taking of testimony as preparation for a hearing at special term; and that an amendment of the orders of reference requires an amendment of the stipulation, which the court has no power to order.

On the contrary, I find the intention expressed throughout the case by the parties by stipulations and orders and in every possible form of written declaration and admission, is to try the case out of court and before a referee, and that the amendment of the orders of reference expresses exactly what they purposed and designed from the time that a reference was first suggested.

The suggestion that the court should impose terms of the amendment is not, in my opinion, reasonable. No favor is extended to plaintiff; he gets only what he is legally entitled to.

The order should be affirmed.

Van Hoesen, J.

In my opinion, both parties intended that the referee should hear and determine the issues (subject, of course, to the application to the court for its approval of his proceedings that section 1229 and rule YY make an indispensible preliminary to the entry of judgment, in an action for divorce). The attorneys appear not to have had at the time a clear recollection of the requirements of the law, for they assume that they could select the referee though rule Y3 forbids the appointment of a referee selected by the parties. I believe that both parties supposed that the stipulation provided for a trial of the issues first, and then for the submission of the referee’s report to the court in obedience to the requirements of rule and section 1229. This was their meaning, imperfectly and inartificially expressed. Judge Allen- did not make a new stipulation for them, but simply gave form to what both parties intended at the time the stipulation was signed.

I concur with Judge Daly.

Larremore, C. J. (dissenting).

This is an action for divorce. The complaint charges the defendant with adultery, and asks for a dissolution of the marriage. The answer denied the allegations of the complaint, set up counter allegations of adultery, and, also, asked for a divorce, a vinculo. The action being at issue, upon the consent, in writing, of the attorneys for both parties, it was, on or about the 22d day of November, 1884, referred to a referee “to take proof of the facts stated in the complaint, and report to this court with all convenient tpeed, with his opinion thereupon; and also to take proof of she service of the summons and complaint upon this defendant.” Thereafter a supplemental answer was served by defendant, and on or about the 19th day of May, 1885, upon the consent in writing of said attorneys, it was ordered: “That the issue raised by said supplemental answer and reply be tried before the referee heretofore appointed herein, in like manner as if included in the original order of reference to him.” Testimony was taken on behalf of both parties before the referee; proposed findings and conclusions of law were submitted to him, upon which he Eassed, and, on or about the 28th day of September, 1885, e rendered his report containing findings of fact and a conclusion of law, to the effect that plaintiff is entitled to a decree in his favor, and that said plaintiff be absolutely divorced from the defendant. Thereafter, and on or about the 30th day of November, 1885, upon motion of plaintiff’s counsel án order was entered at the special term amending said orders of reference nunc pro tunc, so that the ordering part of the same shall read as follows:

Ordered, That the above entitled action, and all the issues therein, be and the same hereby are referred to John A. Osborn, Esq., referee, to hear and determine the same and report thereon with all convenient speed.”

From such order of amendment this appeal is taken.

If the order appealed from had simply amended the orders of reference to conform with a consent given, as in the case of Fisher v. Fisher (special term of this court, June, 1875), the authority of the court to make such amendment would have been ample under section 724 of the Code. The difficulty is that the original order of reference did conform with the consent, and, if such order is amended, the consent must be amended also. According to section 1757, if the allegation of adultry is put in issue, the court must, upon the • application of either party, or may, of its own motion, order the trial of such issue by a jury. According to section 1012, if such issue is raised it may, in the discretion of the court, be tried by a referee, provided the parties consent to a reference. Section 1011 must evidently be read in connection with section 1012, and it provides how such consent is to be manifested, i. e., by the written stipulation of the parties signed by their attorneys. If the issues are not tried by a jury under section 1757, or by a referee under sections 1011 and 1012, they must of course be tried at the special term.

As this case was at issue it could not have been referred at ah, except upon the consent, in writing of the parties. Such consent was signed by the respective attorneys, and plaintiff, in effect, asks the court to declare that it was in reality, though not in terms, a consent to refer the issues to hear and determine. But how can we disregard the explicit language of the consent, and hold that the parties meant one thing when they said another ? In Renouil v. Harris (2 Sandf., 642), the court held that when an order is made referring the cause without any limitation, all the issues are referred. In McCleary v. McCleary (30 Hun, 154), the order was “to hear the same and all the issues therein.” In neither of these cases did the court go counter to the language employed; but"in both the decision went on the theory that the intention was incompletely expressed in the order, but was nevertheless apparent from it. In the case at bar the power of the referee is expressly limited and defined in the consent and order; and if the latter were amended to be an order to hear and determine, the original intention of the parties, so far as language can express it, would be disregarded, and the arbitrary dictum of the court substituted therefor.

“The right to give or withhold the consent does not belong to the court, but to the party; his free choice and option cannot be taken away under the guise of correcting a mistake or oversight.” Wilmore v. Flack, 96 N. Y., 519.

In the case from which this extract is quoted, the court of appeals decided that it was beyond the power of a court, under the pretence of amendment to pronounce that a consent existed which had never been given. Equally, beyond the court’s power, would it be to pronounce that a consent did not mean what its unambiguous language expressed. The consent upon which the supplemental order of reference was granted is simply that the issues raised by the supplemental answer “be included in the order of reference already entered,” and cannot be construed to aid plaintiff in his present contention.

Plaintiff further claims, under the authority of Baird v. The Mayor (74 N. Y., 382) and many other cases of similar import, that the order appealed from should be affirmed, because, by proceeding with the reference, defendant has waived any irregularity in the original order. But defendant is not asking to set the reference or its results aside. She offers to allow the testimony to stand and be used at the trial of the case. She has not asked to have the reference declared a nullity; but that the effect of a written instrument shall not be extended beyond its actual terms. Some of the allegations, in papers verified by herself and her counsel and the form of the supplemental order of reference of May. 19, 1885, are indeed inconsistent with her present position. But on the other hand, it appears that the referee did not consider that he was empowered to hear and determine the action and that he excluded testimony offered by defendant, on this ground.

The present situation is one which is presented so frequently in divorce cases that we are led to believe that there is much confusion in the minds of members of the bar as to the proper practice. See remarks of Freedman, J., in Sullivan v. Sullivan (9 Jones & Spen., 519). Even if both parties were under the impression that they were actually trying the case before the referee, and in many respects acted under such assumption, I do not think that this takes away from the defendant the privilege of asserting her strictly legal right. Wilmore v. Flack (supra). In Sullivan v. Sullivan (supra), the order of reference was to take proof and report, as in the present case; and upon the coming in of the report the court refused to confirm it, saying: “There is but one way that I can see in which evidence irregularly taken after issue, by a referee, pursuant to an order to that effect, can be used in an action for divorce; and that is, that by consent of the parties it may be read upon a subsequent trial held before the court, and brought on on regular notice in the usual way. In such case it may be treated, and will have the force of a conditional examination before trial. But this course must be agreed to by the parties, and thereupon the court must try the issues and make its own findings of fact and draw its own conclusions of law therefrom.” In that case no application for an amendment nunc pro tunc of the order of reference seems to have been made, but from the tenor of the learned judge’s opinion it is quite clear he would not have entertained it. As to the course to be pursued under the circumstances, I think the better rule is that laid down by Van Brunt, J., in Wertheimber v. Wertheimber (1 Law Bulletin, 34), as follows: “The case must be brought on for trial upon the usual notice, and instead of the witnesses being sworn in open court, the evidence taken before the referee must be presented.” See, also, Kane v. Astor’s Executors, 5 Sandf., 467. This view, in the main, commends itself; but I also think that as the proceeding in •court is the trial of the action, the parties should be permitted to present any additional evidence they have to offer, and that the case should be there heard and decided' upon the evidence taken before the referee and in court. If is especially proper in this case that the parties should be accorded such privilege, because it appears that some evidence was excluded by the referee, for reason of his want •of power.

The order appealed from should be reversed with provision for a trial at the equity term, as above directed.  