Opinion
May 3, 1939.
Present — Sears, P.J., Crosby, Lewis, Cunningham and Dowling, JJ. [ 167 Misc. 449.]
Orders affirmed, with ten dollars costs and disbursements. Memorandum: We affirm the order of May 11, 1938, on the ground that no order was made or even orally directed to be entered granting a reference to the official referee. Therefore, the court could not supply by an order entered nunc pro tunc a jurisdictional prerequisite to the trial which had never in fact existed. (Civ. Prac. Act, § 127; Hindermann v. Hindermann, 245 App. Div. 246; Merrick v. Merrick, 266 N.Y. 120; Sobel v. Sobel, 234 App. Div. 98.) The orders of May 27, 1938, and June 30, 1938, were made in the exercise of discretion which we find not to have been abused. All concur. (The first order granted defendant's motion to vacate the proceedings before the referee, and denied plaintiff's motion for an order of reference to be entered nunc pro tunc; the second order denied plaintiff's motion for additional counsel fees; the third order denied plaintiff's motion for counsel fees for the purpose of prosecuting the appeal, in a separation action.)