fully defend an action brought against him for the rent on the ground of a constructive eviction, nevertheless he has failed to show such an actual eviction of any substantial portion of the premises leased by him as would entitle him to a suspension of the rent during the time he remained in possession. It may also be said that when the appellant executed the lease he was informed by the agent of the landlord of the nature and extent of the proposed alterations in the building, and paid only one-half the rent for a portion of the time, as agreed upon between the parties.

Final order reversed, and new trial ordered, with costs to the appellant to abide the event.

GILDERSLEEVE, J., concurs.

TRUAX, J. (concurring). In an action for rent the defendant cannot set up as a defense a constructive eviction while he remains in possession of the premises (Boreel v. Lawton, 90 N. Y. 247, 43 Am. Rep. 170); but it is equally well settled that a landlord cannot maintain an action for rent if the tenant is able to show an actual eviction from a portion of the premises (Sirey v. Braems, 65 App. Div. 472, 72 N. Y. Supp. 1044); that is, an actual eviction from a portion of the premises suspends a landlord's right to maintain an action for rent during the actual eviction, and this actual eviction would, under section 2244 of the Code of Civil Procedure, be a defense to the proceeding in like manner as though the claim for rent in such proceeding was the subject of the action. It therefore remains to be determined whether there has or has not in fact been an actual eviction of the tenant from a portion of the demised premises. The agreement between the landlord and the tenant was in writing, and was for "the offices or rooms Nos. 66, 67, 68, and 69 in the Nassau-Beekman Building, known as 140 Nassau street, * * at the yearly rental of $1,000, payable in equal monthly payments in advance on the first day of each and every month during the said term." In said lease the lessee covenants that "the lessor shall not be responsible for any latent defects or change of condition in the said premises, nor other damage to the same, or to goods or other things contained therein, or for any overflow or leakage upon or into the premises from the croton water, or from any other source." I am of the opinion that the evidence does not show that the tenant was in fact deprived of the quiet and peaceable possession and enjoyment of the entrance, halls, elevators, stairways, and of his offices. All that the evidence shows is that the use of his offices was rendered less convenient to him. The evidence also shows that when the lease was made the landlord was making alterations in the building; that the tenant received a deduction in the rent of six months, part of which was applied to his then existing lease and part to this lease; and that, therefore, the words from the lease. last above quoted that the lessor shall not be responsible, etc., prevent the tenant from claiming an eviction from a portion of the demised premises. I concur with Mr. Justice FREEDMAN.

and 111 New York State Reporter

(38 Misc. Rep. 109.)

YOUNG v. YOUNG.

(Supreme Court, Special Term, Ulster County. May, 1902.) DIVORCE-REFERENCE BY CONSENT.

Where a husband sues his wife for divorce, and she is paid temporary alimony and a counsel fee, and after a trial before a referee the finding is in favor of the husband, his motion for judgment on the report should not be denied because the court appointed the referee by consent of the parties, and upon their written stipulation, in violation of Code Civ. Proc. § 1012, providing that reference shall not be made on consent of parties of course in an action for divorce, and that, when the parties consent, the court must designate the referee.

Action by Frank W. Young against Sarah Young. judgment on report of referee dissolving a marriage. accordingly.

Bernard & Van Wagonen, for plaintiff.
Brinnier & Searing, for defendant.

Motion for
Judgment

BETTS, J. This case now comes before me upon a notice of motion for a judgment upon the report of the referee herein dissolving the marriage between the plaintiff and the defendant, and awarding the custody of the children of the marriage to the plaintiff. The plaintiff asks for an absolute divorce upon the ground of the adultery of the defendant. The answer denies the adultery. The case first came before me at special term on September 21, 1901, on the application of the defendant for counsel fee and temporary alimony pending the trial. No proceedings were had then excepting an adjournment until Saturday, September 28th, when the case was argued by Mr. Brinnier for the defendant and Mr. Van Wagonen for the plaintiff. A large counsel fee was asked, and a large weekly allowance for alimony for the support of defendant and her infant daughter. It was urged on the part of the plaintiff that neither should be granted; that the plaintiff had been supporting both children, and was willing to do so, but that the defendant had taken the daughter without the plaintiff's consent, prior to motion being made for alimony; and that, if any counsel fee was allowed, it should be small. The defendant's attorney, however, insisted that his client was an innocent and greatly wronged woman by this action, and that counsel fee commensurate with the work before him of maintaining her innocence should be granted, and also a liberal allowance for alimony. It was suggested by the court that it was a case that should be promptly tried, and that a reference should be ordered. This was consented to at the time by both counsel for the plaintiff and defendant, and a jury trial. was thus waived on behalf of the defendant by her counsel. An allowance of $100 counsel fee was made and $5 weekly as alimony, and I assume that the alimony has been paid from that time until this. The order entered as a result of that argument should have been a single order allowing counsel fee, alimony, and naming a referee. Instead of that, Mr. Brinnier presented an order immediately allowing alimony and counsel fee, which was signed and was

filed the following Monday, September 30th. Several days later, and on October 12th, a stipulation was presented to the court, signed by the plaintiff's attorneys and defendant's attorneys, waiving trial by jury, and consenting to the appointment of Walter N. Gill as referee herein, which was signed by the court at special term on that day, and entered on October 14th. The trial thus consented to and directed proceeded with many hearings attended by both counsel. The case was strenuously fought and opposed. Many hearings were had; numerous witnesses were sworn, examined, and cross-examined at great length on both sides. The referee finally reported in favor of the plaintiff and against the defendant, granting the divorce. Exceptions were filed to the report of the referee by the defendant. The confirmation of the report is opposed on this argument upon the sole ground that the referee was appointed by the court on the consent and stipulation of the parties hereto, and that hence his appointment was illegal and void; and Mr. Brinnier repudiates his stipulation consenting to such reference.

Section 1012 of the Code of Civil Procedure and rule 72 are relied upon as the basis for the claim herein. Section 1012 should be construed in connection with section IOII. Section 1011 provides for the method of appointment of referees by consent, when the order is to be signed by the clerk. Section 1012 provides that a reference shall not be made of course upon the consent of the parties in an action for divorce, and further provides that, where the parties consent to a reference, the court must designate the referee. Rule 72 of the court rules, which is headed "Reference on Default in an Action to Obtain a Divorce or Separation," provides that the court shall in no case order the reference to a referee nominated by either party, nor to a referee agreed upon by the parties. So we have squarely in this case a waiver of a jury trial by the defendant, and the consent of the parties to the referee, and the court designating a referee agreed to by the parties. It seems to the court that where a party has acquiesced in the appointment of a referee who was appointed by the court, although suggested by the parties, and a trial has been had occupying several months, and strongly contested, the defeated party should be properly estopped from successfully raising what is at the most, in this case, an irregularity. The statute does not provide that the court may not appoint a referee agreed to by the parties. The rule does, but the rule is for cases of default. The statute provides that the court must designate the referee, and the court did designate the referee in this case by signing the order. No contention is made here that the referee is either incompetent, dishonest, or biased towards or against either party. The referee appointed was one in whom the court has confidence, and would be willing to appoint referee in a similar case without suggestion by either party to the reference; and, although he was named in the stipulation, yet the appointment was actually made by the court. The reason for the rule (72) is solely to prevent collusive divorces. No court can read the evidence submitted to the referee and be at all deluded that this action is a collusive one between this husband and wife. The

and 111 New York State Reporter

husband was seeking for a divorce and the wife was opposing it. Where the reason for the rule fails, the rule itself fails. The true object of technical rules is to promote justice or prevent injustice. When they fail of those ends, and come to eat, like rust, into the substance of justice, courts should neither encourage nor enforce them. People v. Tweed, 5 Hun, 353. The courts have held that matter of the kind alleged here was a mere irregularity, and that the reference was not void. Fullmer v. Fullmer, 6 Wkly. Dig. 42. See opinion of Bockes, J., in same case, Id. 22. See opinion of Dykman, J., in Ryerson v. Ryerson, 55 Hun, 191, 8 N. Y. Supp. 738, holding that upon an application to the special term for judgment upon the report of a referee appointed by the court by consent of the parties to hear and determine a matrimonial action, the court 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. In the case of Ives v. Ives, 7 Misc. Rep. 328, 28 N. Y. Supp. 170, on appeal 80 Hun, 136, 29 N. Y. Supp. 1053, an order of reference was made by consent to a referee chosen by the parties. The Code was the same then as now in this regard, and the rule fully as strong. There, as here, the wife received a benefit from the order made. There the case was postponed. Here the wife has received a continuous alimony, which the referee finds she was not entitled to at all, and she also received a liberal allowance for counsel fee, which the report of the referee shows that she was not entitled to. In the Ives Case a motion was made on behalf of the wife, prior to the trial, to set aside the order of reference on the ground that the referee was selected by consent and agreed to by the parties, and in violation of the rules of the court, which motion was denied, and on appeal it was held that the order of reference might be vacated, and that a new referee could be named. by the court upon the consent previously given. In that case the plaintiff stated that she never consented to the reference, and the motion was made before any trial was had; hence it is not the case now before this court. In the case of Pratt v. Pratt, 2 App. Div. 534, 38 N. Y. Supp. 26, an action for divorce was brought by the infant wife against her husband, and after trial had the court denied the motion for leave to enter a judgment in the action upon the report of the referee in favor of the plaintiff. Manifestly, i that case, although the opinion does not refer to it, the plaintiff, being an infant, could not consent to an order of reference or anything else, nor does it appear that she had received any benefit by way of allowance or otherwise in that action; hence the appellate division sustained the special term in denying judgment.

These decisions are not uniform, but I am cited to no. action for divorce where adult parties have, upon application to the court for alimony and counsel fee to the wife, waived a jury trial, and consented to the appointment of a referee, and the wife has received during a protracted trial the benefit of alimony and a liberal allowance for counsel fees, the motion for judgment upon the report of the referee has been denied. The court had jurisdiction of the

parties and subject-matter. It does not seem that a fair trial had should be set aside and all the proceedings vacated simply because a written stipulation was filed, and the court appointed a referee not unfriendly to the wife, now that the decision is adverse to her. Judgment in accordance with the report of the referee may be entered.

Judgment accordingly.

(38 Misc. Rep. 105.).

KURTZ v. CLAUSEN et al.

(Supreme Court. Special Term, New York County. May, 1902.) MUNICIPAL CORPORATIONS-PUBLIC PARKS-CHAIRS-EXCLUSIVE PRIVILEGES.

An agreement made by the commissioner of parks giving an individual the exclusive privilege of maintaining and renting chairs in the public parks of the city, under which chairs were substituted by him for park benches located under the trees in parks, compelling the public to hire the chairs or sit in the sun, is illegal, and in derogation of public rights.

Action by Daniel M. Kurtz against George C. Clausen, president of the department of parks of the city of New York, and others, for the annulment of an agreement allowing one Spate to place chairs in the parks of said city and make a charge for their use. Judgment for plaintiff.

Einstein, Townsend, Guiterman & Shearn (M. S. Guiterman, of counsel), for plaintiff.

John Delahunty, for defendant Oscar F. Spate.

STECKLER, J. This action is by a taxpayer for the rescission and annulment of an agreement made April 16, 1901, between the city of New York, by its then commissioner of parks in the boroughs of Manhattan and Richmond, and Oscar F. Spate. The agreement confers upon Spate the privilege of placing and maintaining chairs in the public parks in said boroughs, for the use of which chairs by the public the said Spate is authorized to make a prescribed charge. It appeared upon the trial that, as an incident to the privilege given to Spate under his agreement, the ordinary park benches were, in or about the month of May, 1901, removed from shady spots, to make way for his chairs, and that any person who was either unwilling or too poor to pay for a chair would have to either swelter on a free bench in the sun, or seek shade, fresh air, rest, or relief from excessive heat in some other place than in the public parks. It seems to me that the agreement in question is a pernicious one, and that the "special privileges" therein conferred are utterly opposed to our institutions. The parks are for the people, and not for any particular class of the people. At all times a source of health and enjoyment, they are especially refreshing during summer, when relief may be had from the torrid heat in the shade of their beautiful trees. To sustain the privileges of the defendant Spate would be tantamount to holding that the natural benefits derived from our parks could be bought and sold, and that a special tax could be imposed as a prerequisite to admission within their boundaries. There is no authority vested either in 77 N.Y.S.-7