
    Ryerson v. Ryerson.
    
      (Supreme Court, General Term, Second Department.
    
    December 10, 1889.)
    1. Referee’s Report—Motion for Judgment.
    On application to the special term for judgment on report of a referee appointed by consent to hear and determine the issues in an action for dissolution of a marriage, it is error to set aside the report, and to direct the issues to be tried at circuit, but the court should either grant or deny the application only, where there is no-charge of misconduct on the part of the referee, and no application to vacate the-order of reference, or for the referee’s removal.
    2. Same.
    Where there is no irregularity and no collusion or fraud charged, and there is-evidence to sustain the referee’s report, judgment should be rendered thereon.
    Appeal from special term, Orange county.
    Action by Edmond E. Ryerson against Milly Ann Ryerson, his wife, to dissolve the marriage. From a denial of his motion for judgment on report of a referee, plaintiff appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      M. N. Kane, (J. J. Beattie, of counsel,) for appellant. F. V. Sanford. (Geo. W. Greene, of counsel,) for respondent.
   Dykman, J.

This is an action by the husband against his wife, to procure a dissolution of the marriage tie on the ground of adultery. Upon the stipulation of the parties a referee was appointed by the court to hear and determine the action, and after a trial before him he made a report in favor of the plaintiff. Thereupon an application was made to the special term of the supreme court for judgment upon the referee’s report for the relief demanded in the complaint, and the court denied the motion, and ordered the issues in the action sent to the circuit for trial; and the appeal now before us is from that order.

When an action is tried before a referee, appointed by the court to hear and determine the same, his report stands as a decision of the court, but in an action to annul a marriage a judgment cannot be entered upon such report without the direction of the court; but it has been many times decided that the court will not review the findings or report of the referee in such' a case upon an application for judgment thereon. The question was very fully examined by the general term in this department in the case of Schroeter v. Schroeter, 23 Hun, 231, and Ross v. Ross, 31 Hun, 140, and, although one of the members of the court dissented from the conclusion reached in the last case, his dissent was upon a question not involved in this appeal. We have found no decision adverse to those named, and the same doctrine was recognized in the recent case of Matthews v. Matthews, 6 N. Y. Supp. 589. Our views were fully expressed in the two opinions delivered in the case of Ross v. Ross, supra, and a restatement of them here will be neither necessary nor profitable. We have found no reason to modify our views. So far as the supreme court can determine the question, we regard it as settled that, upon an application to the special term for judgment upon the report of a referee appointed to hear and determine a matrimonial action, the court will not examine the ease upon the merits, or set aside the report for errors committed upon the trial. The court, upon such an application, will only make such examination as may be necessary to ascertain whether the report has any support in the evidence, or whether there has been fraud or collusion, or any evil practice, in the case by either party. After such examination the application for judgment will be either granted or denied, and the court will proceed no further, because no other subject is presented for its action. It is beyond the province of the court, upon such a motion, to set aside the report, because no such application is made, no such relief is sought, and neither of the parties are heard upon such a question. Neither will the court, upon such an application, direct the issues in the action to be tried at the circuit. The action was referred by consent, and when the parties adopt that mode of trial they do so in the exercise of a legal right; and the court is vested with no jurisdiction or authority, in the absence of a reason sufficient in law, to vacate the order of reference, and nullify all that has been accomplished under and in pursuance of the same. Maicas v. Leony, 113 N. Y. 619, 20 N. E. Rep. 586. In this case there has been no charge of misconduct against the referee, and no application to vacate the order of reference, or for the removal of the referee, or for a trial in any other manner than before the same referee; and yet the order from which this appeal is taken destroys the order of reference, nullifies all the proceedings upon the trial, and prescribes a mode of trial which the parties have repudiated by an express agreement for the appointment of a referee to try the cause, instead of the court and jury.

Neither do we find any reason for the denial of the motion for judgment upon the report of the referee. There was no irregularity, and there was no collusion or fraud charged or claimed. On the contrary, the cause was fairly tried and severely contested, and two unequivocal acts of adultery were sworn to by two different witnesses; and, if their testimony is true, it is sufficient to sustain the report of the referee. Whether the denial of the defendant and the co-respondent should be taken to answer such testimony; or whether, upon a full consideration of all the evidence and all the circumstances, the plaintiff has sustained his ease by sufficient evidence; or whether the referee reached a wise or erroneous conclusion,—can only be properly determined upon an appeal from the judgment, and a case made and settled in the usual and orderly way. We therefore reach the conclusion that the order from which this appeal is taken should be reversed, with costs and disbursements, and the motion for j udgment upon the report of the referee should be granted, with $10 costs. All concur.  