Early v. Early

2 How. Pr. 239

• Court: New York Court of Common Pleas
• Decided: August 15, 1885
• Status: Published

Opinion

Vah Hoesen, J.

There is but one course to pursue in this matter, and that is to require the defendant to take up the referee’s report. That report may or may not be confirmed. The plaintiff may or may not prevail in the action. But the court has ordered a reference for the purpose of informing its conscience. The conduct of that reference has involved a bill for referee’s fees. Who is to pay them ? The referee is the officer of the court and must be paid. The party prevailing would under ordinary circumstances advance them. But that party is the wife, who is without means save such as the husband may provide. Except where it is apparent that the wife’s case is without merit, it is the practice of the court to compel the husband to furnish to the wife the means of carrying on her suit. It is said that in this action the wife cannot succeed. As to that I have no opinion to express, but the orderly course of business is to bring before the court the testimony that has been taken, together with the report of the referee. In order to do that the fees of the referee should be paid. The judge who examines the report and the testimony will determine whether or not alimony should be allowed. But as a preliminary to obtaining that determination I must order the defendant to pay the fees of the referee. Of course only the legal fees need be paid. Let the proper order be prepared and left with Mr. Jarvis, the clerk, for transmission to me.