Anonymous

3 Abb. N. Cas. 161

Opinion

Van Vorst, J.

I do not see how I can withhold an order directing judgment to be entered upon the report of the referee, to whom it was referred to hear, try and determine the issues in this action, which is one for divorce. The referee has distinctly found that the plaintiff has failed to prove that the adulteries charged in the complaint, or any or either of them, was or were committed, as alleged in the complaint. The result reached by him is, that the complaint be dismissed, without costs. I do not think that I would be warranted in substituting my judgment for that of the referee upon the evidence. I might differ from the referee in a deduction from the evidence unfavorable to the defendant. But I am persuaded that I cannot nullify his report. It is true that no judgment can be entered upon the report, except by the court (Code of Civ. Pro. § 1229). But the court, at special term, would not be justified in reviewing the facts found and conclusions reached by a referee who has been commissioned to hear, try and determine the issues, upon an application made by the prevailing party for judgment.

The remedy for the plaintiff, if dissatisfied with the result, is by an appeal from the judgment to the general term.

There was no appeal.