SECOND DEPARTMENT, DECEMBER TERM, 1889. EDMOND F. RYERSON, APPELLANT, V. MILLY ANN Divorce -power of the court in reviewing the referee's report — right to order a new In an action brought for divorce on the ground of adultery, a referee was appointed, On application to the Special Term for the confirmation of this report, the motion After such examination the application for judgment will either be granted or APPEAL by the plaintiff from an order made at a Special Term, held in Dutchess county on the 3d day of August, 1889, whereby a motion, made on behalf of the plaintiff for the confirmation of a referee's report in an action for divorce, and for judgment for the relief demanded in the complaint, was denied, and an order was made that the issues joined in the action be sent to the Orange County Circuit for trial, which order was entered in the office of the clerk of the county of Orange on the 14th day of August, 1889. M. N. Kane and J. J. Beattie, for the appellant. F. V. Sanford and George W. Greene, for the respondent. DYKMAN, J.: This is an action by the husband against his wife to procure a dissolution of the marriage tie on the ground of adultery. Upon the stipulation of the parties, a referee was appointed by the court to hear and determine the action, and after a trial before him he made a report in favor of the plaintiff. Thereupon, an application was made to the Special Term of the Supreme Court for judgment upon the referee's report for the SECOND DEPARTMENT, DECEMBER TERM, 1889. relief demanded in the complaint, and the court denied the motion and ordered the issues in the action sent to the circuit for trial, and the appeal now before us is from that order. When an action is tried before a referee appointed by the court to hear and determine the same, his report stands as a decision of the court, but in an action to annul a marriage, a judgment cannot be entered upon such report without the direction of the court; but it has been many times decided that the court will not review the findings or report of the referee in such a case upon an application for judgment thereon. The question was very fully examined by the General Term in this department in the case of Schroeter v. Schroeter (23 Hun, 231), and Ross v. Ross (31 Hun, 140), and although one of the members of the court dissented from the conclusion reached in the last case, his dissent was upon a question not involved in this appeal. We have found no decision adverse to those named, and the same doctrine was recognized in the recent case of Matthews v. Matthews (53 Hun, 244). Our views were fully expressed in the two opinions delivered in the case of Ross v. Ross (supra), and a restatement of them here will be neither necessary nor profitable. We have found no reason to modify our views. So far as the Supreme Court can determine the question, we regard it as settled that upon an application to the Special Term for judgment upon the report of a referee, appointed to hear and determine a matrimonial action, the court will not examine the case upon the merits or set aside the report for errors committed upon the trial. The court upon such an application will only make such examination as may be necessary to ascertain whether the report has any support in the evidence or whether there has been fraud or collusion or any evil practice in the case by either party. After such examination the application for judgment will be either granted or denied, and the court will proceed no further because no other subject is presented for its action. It is beyond the province of the court upon such a motion to set aside the report because no such application is made, no such relief is sought and neither of the parties are heard upon such a question. Neither will the court upon such an application direct the issues in the action to be tried at the circuit. The action was referred by consent, and when the parties adopt that mode of trial they do so SECOND DEPARTMENT, DECEMBER TERM, 1889. in the exercise of a legal right, and the court is vested with no jurisdiction or authority, in the absence of a reason sufficient in law, to vacate the order of reference and nullify all that has been accomplished under and in pursuance of the same. (Maicas v. Leony, 113 N. Y., 619.) In this case, there has been no charge of misconduct against the referee and no application to vacate the order of reference or for the removal of the referee, or for a trial in any other manner than before the same referee, and yet the order from which this appeal is taken destroys the order of reference, nullifies all the proceedings upon the trial, and prescribes a mode of trial which the parties have repudiated by an express agreement for the appointment of a referee to try the cause instead of the court and jury. Neither do we find any reason for the denial of the motion for judgment upon the report of the referee. There was no irregularity and there was no collusion or fraud charged or claimed; on the contrary, the cause was fairly tried and severely contested, and two unequivocal acts of adultery were sworn to by two different witnesses; and if their testimony is true, it is sufficient to sustain the report of the referee. Whether the denial of the defendant and the co-respondent should be taken to answer such testimony, or whether upon a full consideration of all the evidence and all the circumstances, the plaintiff has sustained his case by sufficient evidence, or whether the referee reached a wise or erroneous conclusion, can only be properly determined upon an appeal from the judgment and a case made and settled in the usual and orderly way. We, therefore, reach the conclusion that the order from which this appeal is taken should be reversed, with costs and disbursements, and the motion for judgment upon the report of the referee should be granted, with ten dollars costs. PRATT, J., concurred; BARNARD, P. J., not sitting. Order refusing to confirm report reversed, with costs and disbursements; report of referee confirmed, with ten dollars costs. HUN-VOL. LV 25 SECOND DEPARTMENT, DECEMBER TERM, 1889. JOSEPH F. SWAN, APPELLANT, V. JOHN F. JACKSON, RESPONDENT. Negligence—when the manufacturer of an article is not liable for an injury occasioned thereby to a third person. In an action brought to recover for injuries received by an employee of an ice company, it appeared that while engaged in delivering ice at a meat market, into a box, from a platform constructed six feet above the floor and intended to sustain the weight of a man while he was filling it, the employee fell from the platform upon which he was standing, by reason of the defective construction thereof; that the box and platform had been constructed for the butcher by one Jackson, the defendant in the action, in a defective and negligent manner. Held, that while the builder or manufacturer of an article may incur liability to third parties, where the defects are such as to render the article itself imminently dangerous, and where serious injury and loss would result from its use, yet that such a rule would not apply to a scaffold like the one in question, as it would not be a natural and necessary consequence of the imperfect and unnatural construction of the box or scaffolding that injury would result to the third person. That this case was within the general rule, that a manufacturer or builder of a defective article is not liable for injuries resulting to third persons, and not within the exception thereto covering the cases where the article is imminently dangerous and calculated to cause injury. APPEAL by the plaintiff from a judgment dismissing the complaint with costs, after a trial at the Kings County Circuit, entered in the office of the clerk of the county of Kings on the 30th day of April, 1888. The action was brought against one John F. Jackson, to recover damages for alleged personal injuries which the plaintiff claimed to have received while attempting to put ice into an ice-box made by said Jackson for one John Boettcher, who was not a party to this action. The plaintiff was temporarily employed by the Montauk Ice Company on an ice-wagon to assist in the delivery of ice, and while delivering ice into the box of the said John Boettcher he sustained the injuries in question. Charles J. Patterson, for the appellant. Isaac Fromme, for the respondent. DYKMAN, J.: SECOND DEPARTMENT, DECEMBER TERM, 1889. The defendant in this action constructed an ice-box for one John Boettcher, who kept a meat market in the city of Brooklyn. The box was about twelve feet high, and upon the front side there was a platform about six feet high from the floor. The platform was supported by iron arms, and was designed as a standing place for menwho were filling the ice-box, to enable them to place the ice in the box when the ice was hoisted for that purpose by ropes and pulleys. There was testimony tending to show that these iron arms were defective. The plaintiff was in the employ of an ice company which supplied Boettcher with ice, and it was the duty of the plaintiff to deliver and deposit the ice into the box. To enable him to perform that duty he was obliged to go upon the platform with another man, and while he was so upon the platform engaged in placing ice into the box, one of the iron arms broke and gave way, and let the platform down, and in falling he received very severe injuries. The plaintiff's complaint was dismissed upon the trial at the close of his case, and he has appealed from the judgment. Negligence is an omission of duty or the violation of the obligation which enjoins care. Generally, the law imposes no liability where there is no privity, and hence the rule by which actions of this character are determined is, that a stranger cannot recover from the builder for damages resulting from the defective construction of any edifice, structure or article, after the title of the object has changed and has passed from his possession, control and direction. The reason for the rule being, that the person sought to be charged, has no connection with the wrong, because the entire control of the article has passed from the builder, and is at the time of the injury subject to the existing owners and proprietors. Judge STRONG, in his opinion, in the case of The Mayor v. Cunliff (2 N. Y., 175, 180) illustrated the rule by the following hypothetical case: "A carpenter is hired to build a barn and furnish the materials. He carelessly places a timber, slightly defective, under the mow, and the barn is accepted by the owner. Some years afterwards the timber, owing to its original defect, breaks and falls upon a laborer, who sustains a serious injury, can he recover of the carpenter?" After stating another suppositional |