Winans v. Winans

Headnote

Waiver of jury trial and consent to reference—When court will not relieve parly from—Poverty of party when not sufficient reason.

Appeal from order denying plaintiff’s motion to vacate the order of reference.

Action for divorce, in which the defense was a denial of the marriage.

The following opinion was delivered by O’Gorman, J., at Special Term:—“ : . . . . The chief reasons now presented to the court for granting the order asked for, are that the plaintiff, although she* authorized her former counsel to propose a reference, was not then fully aware either that she thereby waived her constitutional right to trial by jury, or of the expenses of a reference as to stenographer’s minutes, etc. To the referee himself, no objection is made. It is conceded that he is in all respects competent and capable of rendering a just and impartial decision.

“ The question is whether the plaintiff having freely, deliberately, and on the advice of her counsel, elected to have the issues in her action referred, and a motion having been made in open court by him for an order of reference with the consent of the defendant first having been obtained thereto, should now be permitted by the court to revoke her action and be restored to the full enjoyment of her right to trial by jury which she had voluntarily and solemnly waived. That she had such a right is beyond doubt. Code, • §§ 968, 1012. It is equally certain that the right could have been waived, and was, in fact, waived by her. Code, §§ 1008, 1009. lie Hughes, 93 ÍST. Y. 512. And a constitutional or statutory right having been once waived, cannot «be reclaimed. Re Hughes (supra); Baird v. Mayor, 74 JSf. Y. 386. There may, no doubt, be cases where the court, in its discretion, and in furtherance of justice, and to defeat fraud or manifest wrong, may go far to relieve a party from the consequence of his own act, but the facts should be strong indeed, to warrant such indulgence in such a case as this.

“ I have read the motion papers, and endeavored to inform myself of the facts of this case, for the purpose

only of ascertaining if any fraud had been practiced on the plaintiff, or any unfair or improper inducement used to lead her to agree to a reference, or if any wrong has been inflicted upon her, or is threatened by reason of her agreement to refer. I can see no evidence of any such fraud, or wrong, or danger. That she is too poor to pay stenographer’s fees is not an unusual misfortune of litigants in suits óf this nature, and a remedy is not beyond the reach of this court. For any other purpose than that above stated, the-merits of this case have mot been considered on this motion. The plaintiff and defendant are equally entitled to a fair and proper hearing and decision of the matters in controversy between them. The rights of each must be equally respected. It is the right of the defendant now to proceed with the trial before the tribunal agreed on by him and his opponent, and selected by this court. I see no reason,why he should be obliged to forego that right.

■ “ In order, however, to remove all possibility of injurious disability in the plaintiff to present her evidence, and place it under examination of her counsel, I will order that the defendant provide her or her attorney with copies of the stenographer’s minutes of all the testimony, on the demand of her attorney, at reasonable times, the cost of the* same, however, to be charged against the plaintiff and deducted from any costs which she may recover against him in this action.

“ Except as to that indulgence, the plaintiff’s motion is denied, with ten dollars costs, to abide the event.”