Action for divorce. After issue had been joined a referee was appointed to hear and determine. He made a report in favor of the plaintiff and her -attorney moved to confirm the same. This was .opposed by the defendant’s attorney upon the ground, among others, that all of the evidence bearing upon defendant’s alleged -adultery 'consisted of depositions taken not by the referee, but by a person *273designated by him. The court refused to confirm the report and sent the matter back to the referee to again hear and determine. The defendant, by his attorney, opposed sending the matter back to the same referee and by an order to show cause asked that a new referee be appointed. The appeal is from an order denying the motion to appoint a new referee.
When the referee filed his report his duties terminated; he was then functits officio. When the court refused to confirm his report he should have ordered a new trial before another referee. (Code Civ. Proc. § 1012; Perkins v. Perkins, 130 App. Div. 193; McCready v. Farmers' L. & T. Co., 79 Hun, 241; Matthews v. Matthews, 53 id. 244; First Nat. Bank of West Troy v. Levy, 41 id. 461.)
The section of the Code of Civil Procedure cited provides that “ In a case specified in this section, where the parties consent to a reference, the court may, in its discretion, grant or refuse a reference ; and where a reference is granted, the court must designate the referee. If the referee thus designated refuses to serve, or if a new trial of an action tried by a referee so designated is granted, the court must, upon the application of either party, appoint another referee.” When the court refused to confirm the report and sent the matter back to the referee to again hear and determine, it was, in effect, granting a new trial, and this the defendant was legally entitled to have before a new referee.
Nor do I think the defendant should have appealed from the order denying the motion to confirm the report and sending the matter back to the referee; on the contrary, he adopted the proper course, viz., moving to have the new trial before another referee to be named by the court.
The order appealed from is, therefore, reversed and the motion granted, without costs to either party.
Ingraham, P.- J., Clarke, Soott and Dowling, JJ., concurred.
Order reversed and motion granted, without costs.