Josephine F. Sabater, Respondent, v. Domingo M. Sabater, Appellant

Josephine F. Sabater, Respondent, v. Domingo M. Sabater, Appellant. Divorce — unless the referee gives costs, the court cannot'— the remedy, where the court improperly does so, is by motion. Where a referee, appointed in an action brought to procure an absolute divorce, fails to award costs to the successful party, the Special Term has no right to insert in the judgment a provision granting such costs. The remedy in such a case is to move to amend the judgment by striking out the provision as to costs. • ¡Semble, that the question could not be raised by an.appeal from the judgment. Appeal by the defendant, Domingo M. Sabater, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Hew York on the 27th day of March, 1896, denying the defendant’s motion to amend the judgment entered in the action by striking out the provision thereof awarding costs to the plaintiff. The action was brought for an absolute divorce. Issues were joined therein, and the action was referred to a referee to hear, try and determine. The case, was tried and the report of the referee was made and filed, directing judgment for the plaintiff for an absolute divorce, alimony and the custody of the children, but there was no direction for the payment or recovery of costs. A motion was made at Special Term for a confirmation of the referee’s report and for judgment. The court awarded judgment, in the usual form in favor of plaintiff, and- among other things adjudged that the plaintiff recover of the defendant the costs of the action, specifying the amount thereof. Thereupon this motion was made and the order entered, from which order this appeal is taken. J. J. Karbry O’Kennedy, for the appellant. Edward Jacobs, for the respondent. [MAJORITY — Williams, J.:] Williams, J.: The court had no power to insert in the judgment the provision for the recovery of costs. The referee had discretion to allow or disallow costs. The Special Term had no such power. It .could insert no provision in the judgment not authorized by the referee in his report. (Jones v. Jones, 71 Hun, 519.) This provision in the judgment was unauthorized, and the remedy to correct the judgment in this respect was by motion to strike out. It is doubtful if the question could be raised by appeal from the judgment. (Brigg v. Hilton, 99 N. Y. 517.) The order appealed from should he reversed, and the motion to strike out should be granted, hut without costs of appeal or motion, because the plaintiff was the wife. Van Brunt, P. J., Rumsey, Patterson and Ingraham, JJ., concurred. Order reversed and motion granted, but without costs of appeal or motion.