Ives v. Ives

The motion in this case is to set aside the order of reference to John G. McIntyre, on the ground that the referee

The action is brought to obtain a divorce, on the ground that a comnlon-law marriage was contracted between the plaintiff and the defendant; and the adultery charged upon the defendant consists in the living with the lady whom he openly married on the 10th day of January, 1893, some nine months before this action was commenced; and such marriage and living are conceded in the answer. The only issue, therefore, to be tried in this action, is upon the allegation of the marriage with the plaintiff contracted, by secret, common-law contract, years before the marriage to Miss Morton. There is therefore no possible element of any collusive or fraudulent effort to undo the bonds of the marriage, irksome to both parties, between the plaintiff and the defendant, but both by the pleadings, the statements of counsel, and a sharp controversy which has arisen in this action, it is plainly evident that the issue here is whether the plaintiff is an injured woman, or the action is based upon an attempt to blackmail the defendant upon a false claim, by means of a pending, harassing litigation, disturbing the defendant and the woman whom he married a year ago, and with whom he lives in the relation of husband and wife. The action was at issue October 11, 1893, nearly three months before the St. Lawrence circuit, was noticed by the defendant for trial, and put upon the calendar. On the first day of the circuit the plaintiff appeared by the counsel who makes this motion, and submitted affidavits of her illness, and inabilty to attend court. The defendant’s counsel challenged the assertion, and time was given to present opposing affidavits. On the hearing, of the motion, on the 11th of January, the justice presiding at the circuit

After the announcement of the decision on the motion to continue, counsel retired, and in the course of the afternoon came-into court. The counsel for the plaintiff, who had appeared that day, and who is the attorney of record, informed the court that he had elected to take a reference to hear and determine; and '.oon thereafter an order was presented to the court, bearing the name of the present referee, who was entirely acceptable to the-court, and one whom the court would have designated without any hesitation. The court thereupon directed the order to be-entered, and, as appears from the papers, the case was properly noticed for trial before the referee; and no evidence of discontent with the arrangement was presented to the other side until 15-days later, and on the eve of the trial before the referee. From the affidavit of the plaintiff on this motion, it appears that she- ■ knew of the reference on the day following the entry of the order,— the 12th of January, 1894. The circuit court in St. Lawrence-county was still in session, and an application could then have-been made to still try the case by jury on the 17th,—five days later; but no objection was made to the reference that came to-the notice of the other side until the 26th of January, when the court had adjourned.

In directing the order of reference designating Mr. McIntyre to be referee, the court was not unmindful of rule 73, nor of the-construction which has been placed upon it in this judicial department. That rule follows rule 87, in force at the time of the adoption of the Code oí Civil Procedure, which provides that the “court shall in no case order the reference to a referee nominated by either party.” In considering the rule, the general term of the supreme-court, in the third judicial department, held that a reference by consent in a contested case was, if objectionable, merely an irregularity which could be waived by the attorneys. Fullmer v. Fullmer, 6 N. Y. Wkly. Dig. 42. This ruling has not, so far as this:

This leads to the additional consideration of the estoppel resting upon the plaintiff. Assuming, for the sake of argument, that the attorney and counsel for the plaintiff in this action have made this motion because they are shocked at having apparently transgressed a rule of court, or a provision of the Code of Civil Procedure, and that, actuated by a sense of their duty as practitioners, they have called the attention of the court, by the motion, to this apparent transgression, still, we must assume they are guided by the directions of the plaintiff. We might also assume that the notice of motion, by its general clause, in addition to its specific request, was meant to cover the substitution of another referee, to be selected by the court, who, in his personnel, might be as distasteful as possible to the counsel for the plaintiff. Yet this assumption must be abandoned, from the attitude taken by the counsel for the plaintiff on the argument of this motion, presumably from instructions by his client. He argued orally that the order referring the case to Mr. McIntyre should be set aside on general motives of public policy, illustrated by the rule and the Code, and then, citing Presten v. Morrow, 66 N. Y. 452 , argued that no other referee could be substituted, presumably from motives -of private policy of the plaintiff. So it appears that -the final result of the present proceedings, by a happy coincidence, would, if the plaintiff’s claim is correct, result in precisely the same end as that asked for at the circuit, viz. a delay in the trial of the case until the coming May. The plaintiff is estopped from effecting such result. We have seen that, by the decision of our general term, she could waive the alleged irregularity. She certainly does so by accepting the benefit of the order postponing the cause over the then pending term of the circuit court. A party can even waive a constitutional right. In re Cooper, 93 N. Y. 507 . And even if a matter of public • policy is involved, as in the case of the statute forbidding usury, a party may be estopped from establishing a defense by his own declarations that the security is untainted. It would be a far more dangerous transgression of law to allow a party to promote an end desired by such means as those adopted, than to refer an issue as to whether a common-law marriage has been accomplished to a referee to determine, who was entirely acceptable to both sides.. The motion is accordingly denied.