Lincoln v. Lincoln
The Superior Court of New York City
Motion to set aside a judgment. This action was brought for an absolute divorce, on the ground that the defendant was a married woman at the time the plaintiff married her. The allegation of such marriage was denied by the defendant. The issues were referred by the consent of both parties to a referee, who was ordered to take the evidence and to report the same to the court, with his opinion thereon.
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Motion to set aside a judgment. This action was brought for an absolute divorce, on the ground that the defendant was a married woman at the time the plaintiff married her. The allegation of such marriage was denied by the defendant. The issues were referred by the consent of both parties to a referee, who was ordered to take the evidence and to report the same to the court, with his opinion thereon. Both parties appeared before the referee, but before all the testimony was taken, the defendant procured an order from the court, requiring the plaintiff to show cause why a commission should not…
1Opinion of the CourtMonell, J.
The first order of reference was, I think, irregular. The defendant had appeared and answered, denying her previous marriage. Such issue could he referred with the consent of the parties-; but it should have been a reference to hear and determine the issues, and not to take the proofs and report them to the court. The latter species of reference is only proper when there is a default in answering. (Rule 86.) Such irregularity would necessarily render the judgment irregular. But the irregularity may be waived by the appearance of the defendant before the referee without objecting. (Renouil v.…
2Cases cited2 opinions
- Woodruff v. . McGrathNew York Court of Appeals · 1865
- Hoogland v. WightThe Superior Court of New York City · 1860