PRICE against PRICE

PRICE against PRICE. Supreme Court, First Department; First District, General Term, January, 1871. Divorce.—Report oe Referee. A judgment of divorce will be reversed on appeal, if the referee’s report on which it was entered does not find upon issues made by the pleadings as to guilt on the part of the successful party. Appeal from a judgment. The action was for a divorce a vinculo, and the judgment was entered upon the report of a referee (to whom the cause had been referred to hear and determine the issues therein), in favor of the respondent, Mrs. Price, the plaintiff in the action. The plaintiff prayed judgment of divorce on the ground of adultery, and also asked the custody of the child of the parties. The husband, in his answer, denied the adultery alleged, charged that the plaintiff had committed adultery, and counter-claimed ■ a divorce. The referee found, as matters of fact, that the material allegations of adultery in the complaint against the husband had been proven, and that, as matter of law, Mrs. Price was entitled to a divorce a vinculo, and to the custody of the child. From the judgment entered on this report, the husband appealed to the gen- ■ eral term. Levi S. Chatfield, for the appellant, Insisted that the defendant’s allegations of adultery, and the affirmative relief asked by the plaintiff, were in the nature of an independent action, and should have been specifically passed on by the referee by proper findings. Elbridge T. Gerry, for the respondent. I. It was unnecessary for the referee to negative issues not found specifically. The findings in favor of the respondent were equivalent to an adverse finding to the appellant, on the facts not specifically found in the report (Nelson v. Ingersoll, 27 How. Pr., 1; Lefler v. Field, 50 Barb., 407; Smith v. Coe, 29 N. Y., 666; Ashley v. Marshall, Id., 494; Alger v. Raymond, 7 Bosw., 418; Manley v. Ins. Co., 1 Lans., 20; Sermont v. Baetjer, 49 Barb., 362; Ricard v. Sanderson, 41 N. Y., 181. II. If the appellant felt aggrieved by any omission to find, he should have moved at special term to remit -the report for further findings. His remedy was by motion, not by appeal from the judgment. [MAJORITY — Ingraham, P. J. (orally).] Ingraham, P. J. (orally). A divorce suit is different from any other legal proceeding. The court cannot direct a judgment of divorce upon the consent of parties, and this court will not at general term affirm a judgment entered on a report which only finds upon the adultery of one party to the action, although, there are charges of recrimination made against the other, and evidence was offered on the trial in support of them. The statute (2 Rev. Stat., p. 145, § 42, subd. 4) provides that the court shall deny a divorce, when it shall be proved that the complainant has also been guilty of adultery, under such circumstances as would have entitled the defendant, if innocent, to a divorce. Where an issue has been made on the criminality of the plaintiff as well as of the defendant, it is the duty of the referee to find upon both issues. The report must be taken back to the referee, with instructions to find upon the issues raised as to the plaintiff’s adultery, not passed upon in the present report. Present, Ingraham, P. J., and Barnard and Cardozo, JJ.