CPLR 4320(a) provides that "[a] referee to report shall conduct the trial in the same manner as a court trying an issue without a jury," which simply imposes the requirement on a referee assigned to hear and report to conduct a trial in the same manner as a court trying a nonjury trial. While the referee overseeing a trial, by necessity, has the discretion to grant or deny an application for an adjournment (see Schroeder v Musicor Record Corp., 49 A.D.2d 560; Jan S. v Leonard S., 26 Misc.3d 243, 250 [Sup Ct, NY County]), a referee assigned to hear and report lacks the authority to preclude a party from presenting evidence, which effectively prevents the court reviewing the referee's report from considering potential evidence. Thus, here, while the Referee was not required to indefinitely adjourn the trial to afford the defendant an opportunity to present a case, the Referee should not have affirmatively precluded the defendant from presenting evidence prior to the close of the plaintiff's case.
ector of the Liquidation Bureau of the Department of Insurance and the former Treasurer of Nassau Insurance Company, as well as the Report of the Special Referee, which established that the claims listed on the Liquidator's Loss Schedule were, in fact, covered under the reinsurance treaties as to which Ardra defaulted and that the Liquidator had proven that all premiums due Ardra under the reinsurance treaties were paid to Ardra. Nor, did the IAS Court abuse its discretion in denying the DiLoretos a further adjournment of the scheduled inquest for an additional 60 days in order to permit their counsel to recover from spinal surgery, since the record reveals that any representation required by the DiLoretos in connection with the inquest was readily available from their attorney's associate counsel as well as from counsel for Ardra, and that the court's denial of the adjournment sought did not deprive the DiLoretos of their right to participate in the proceeding through counsel (cf., Schroeder v. Musicor Record Corp., 49 A.D.2d 560). Concur โ Ellerin, J.P., Kupferman, Williams and Tom, JJ.
The defendants were directed to appear for a deposition at Special Term Part II on a specific date. It is alleged that because of inadvertence and confusion a note was not made in the office diary, and thus the defendants failed to appear as required. The plaintiff then moved for an inquest, and Special Term, while correctly denying the inquest, in view of the explanation and the fact that where possible, cases should be decided on the merits (Brettschneider v Brettschneider, 52 A.D.2d 548; Schroeder v Musicor Record Corp., 49 A.D.2d 560, 562; Benadon v Antonio, 10 A.D.2d 40, 42), granted the stenographer's fee payable by the plaintiff for attendance at the proposed examination, but only at the conclusion of the action. This payment should be made forthwith as it is a current obligation assumed by the plaintiff to no avail because of the failure of the defendants to appear.
However, the court refused the adjournment, and not only denied custody to the plaintiff as to the one child, the subject of the writ, but granted the cross motion for temporary custody of both children to the husband. This was an abuse of discretion. It is a public policy that actions should be disposed of on the merits (Schroeder v Musicor Record Corp., 49 A.D.2d 560, 562; Benadon v Antonio, 10 A.D.2d 40, 42; Andrea Raab Corp. v Goodman Chem. N.Y. Corp., 40 A.D.2d 673). This is especially so in matrimonial actions (1 Foster-Freed, Law and Family [NY, rev], ยง 8:2, Opening default judgments, p 413). The wife should not have been deprived of custody on the basis heretofore delineated. It is wrong to bandy children about in this fashion.
CPLR 4320(a) provides that "[a] referee to report shall conduct the trial in the same manner as a court trying an issue without a jury," which simply imposes the requirement on a referee assigned to hear and report to conduct a trial in the same manner as a court trying a nonjury trial. While the referee overseeing a trial, by necessity, has the discretion to grant or deny an application for an adjournment (see Schroeder v Musicor Record Corp., 49 A.D.2d 560; Jan S. v Leonard S., 26 Misc.3d 243, 250 [Sup Ct, NY County]), a referee assigned to hear and report lacks the authority to preclude a party from presenting evidence, which effectively prevents the court reviewing the referee's report from considering potential evidence. Thus, here, while the Referee was not required to indefinitely adjourn the trial to afford the defendant an opportunity to present a case, the Referee should not have affirmatively precluded the defendant from presenting evidence prior to the close of the plaintiff's case.