Opinion
June 11, 1937.
Appeal from Supreme Court of New York County.
Lewis Nadel of counsel [ Leo O. Gruber, attorney], for the appellant.
Jacob Blecheisen of counsel [ Blecheisen Whalen, attorneys], for the respondent.
Present — MARTIN, P.J., O'MALLEY, TOWNLEY, GLENNON and UNTERMYER, JJ.
The judgment, so far as appealed from, should be reversed and a new trial granted on the question of the amount of alimony to be allowed.
Although the order of reference only conferred upon the referee authority "to take proof of the matrimonial allegations of the complaint," he proceeded on his own initiative to take proof and to determine the question of alimony. In doing so he refused to allow the defendant even to contest the amount of alimony to be allowed, stating, "that I will not hear." He declined to allow the defendant an opportunity to establish that an agreement previously entered into between the parties under all the circumstances made reasonable provision for the support of the plaintiff and was not induced by fraud. Finally, the referee took the position, quite improperly we think, that he would fix alimony at the rate of twenty-five dollars a week unless the defendant would voluntarily agree to alimony of fifteen dollars.
The judgment, so far as appealed from, should be reversed, without costs, and the matter remitted to the Special Term for a new trial of the question of alimony.
Judgment, so far as appealed from, unanimously reversed, without costs, and the matter remitted to the Special Term for a new trial of the question of alimony. Settle order on notice.