People v. McGinnis

By the Court,

T. R. Strong, J. —

I am satisfied that the action for a divorce was referrible. (Code of 1851, sections 253, 254, 270.) By §253, it was provided that “whenever in an action for the recovery of money only, or of specific real or personal property, there shall be an issue of fact, it must be tried by a jury, unless a jury trial be waived, as provided in section 266, or a reference be ordered, as provided in sections 270 and 271.” Section 254 declares that, “ every other issue is triable by the court, which, however, may order the whole issue, or any specific questions of fact involved therein, to be tried by a jury; or may refer it as provided in sections 270 and 271.” By § 270, “ all or any of the issues in the action, whether of fact or of law or both, may be referred, upon the written consent of the parties.” The action was clearly embraced within the last two sections.

It was not necessary to a valid reference of the action, that the plaintiff, or his attorney, should subscribe the stipulation given by the attorney of the defendant in the action, or any writing consenting to a reference; it was sufficient if the plaintiffs attorney assented in open court to the order of reference If the order was entered with his assent, it was a written consent of his to the reference. It is not expressly stated in the bill of exceptions, that the plaintiff’s attorney was present and assented to the order when made, but it is stated that the stipulation of the defendant’s attorney was given to him, from which and the terms of the order, it is apparent that the reference was asked for by him. A written consent might also be waived, by appearing before the referee, and participating in the proceedings on the trial. It is not stated in the bill, in terms, that the plaintiff’s attorney did appear and take part in the trial, but it is fairly to be inferred from the statements therein in respect to the trial, and the fact that he testified in the present case what was sworn to by the defendant on the trial before the referee.

The order of reference is informal. It does not expressly refer, or direct a reference of the action, but I think it sufficiently shows the assent of the court to a reference to the referee named therein, and that it was intended thereby to refer the action, provided the defendant’s attorney should give such a stipulation as was given by him.

In regard to the objection of variance between the indictment and the evidence, in respect to the person before whom the referee was sworn, it is a sufficient answer to it, that it was not necessary to allege or prove anything on that subject. (Howard v. Sexton, 4 Comstock R. 157.) Assuming that the provision of the revised statutes, requiring a referee to be sworn before proceeding to hear any testimony (2 R. S. 384, § 44), was applicable to the case, as it probably was, the oath was not necessary to confer jurisdiction to try the action. The referee acquired jurisdiction by. the order of reference, duly made; the omission of the oath would have been an irregularity merely, and the subject only of a motion. Regarding the allegations and proof, in regard to the taking of the oath by the refere'e, as superfluous, no prejudice could result to the defendant from the variance, and it must be overlooked. (2 R. S. 728, § 52; The People v. Treadway, 3 Barb. S. C. R. 470, and cases cited.)

The court properly excluded the proof offered on the part of the defendant, to show that Ann Golden had said that McDer-mott did give the fifty cents. It does not appear by the bill of exceptions that she had testified that she had not said so, or that any question was put to her as to whether she had so stated, but if the inquiry had been made of her and she had testified that she had not made such a statement to McDermott, evidence to contradict her in that respect would not have been admissible. The subject of the inquiry would have been purely collateral and the answer of the witness would have been conclusive. (Howard v. The City Fire Ins. Co. 4 Denio R. 502; Harris v. Wilson, 7 Wend. R. 57.)

These views dispose of all the exceptions which were relied on upon the argument; the other exceptions taken at the trial were abandoned, and properly so, as it is manifest that neithe) of them is tenable.

New trial denied.