Shanley v. Shanley , 275 A.D.2d 775 ( 1949 )

On motions of this character, the relevant statutes do not make the taking of oral proof before the court or an official referee a prerequisite to the granting of relief. (Civ. Prae. Act, §§ 467, 1172-a; Judiciary Law, §§ 772, 770, 756.) Ordinarily, of course, if a dispute arises as to the material facts, it is the preferable and common practice to direct a reference to an official referee to hear and report before any final determination is made by the court. (Staehr v. Staehr, 269 App. Div. 762; Nabut v. Nabut, 271 App. Div. 935; Rolfo v. Rolfo, 271 App. Div. 892; Hendrickson v. Hendrickson, 268 App. Div. 1045.) But this practice is not mandatory, inflexible or invariable. When a hearing has been had, upon which the facts are clearly established by affidavits, and by the record of the prior proceedings, as they are here, the court may, and from time to time does, finally determine the motion, without taking testimony or directing a reference for that purpose. (Myers v. Myers, 252 App. Div. 768; Hendrickson v. Hendrickson, 266 App. Div. 1011.) In such case a reference would merely delay unnecessarily the final decision. Nolan, P. J., Carswell, Adel, Wenzel and MacCrate, JJ., concur.