EXTENSION OF TIME FOR REFEREE to Report,—continued. on his (referee's) table for such attorney, at the same time sating the amount of his fees, whereupon, the attorney mentioned informed the plaintiff's attorney that the referee had made his report for defendant, and was about to prepare an opinion, which he would serve with a copy of the r--t. Quackenbush v. Johnson, 55 How. Pr. 94. After the expiration of the 60 days a party, having an attorney, Cannot personally give notice of termination of the reference. Halsey v. Carter, 6 Robt. 535. Upon the question of the sufficiency of the notice to terminate the refer ence, it may be said that the same is sufficient, where it distinctly gives the opposite party information that the party serving the notice has elected to end the reference for the delay in reporting. Gregory v. Cryder, 10 Abb. Pr. N. S. 289. Niles v. Maynard, 28 How. Pr. 290. Thus, it is sufficient to serve a notice worded as follows: "You will please take notice that the defendant in this action will proceed therein as if no reference had been ordered therein." Gregory v. Cryder, 10 Abb. Pr. N. S. 289. Such time may also be terminated by one of the attorneys serving notice of trial and placing the case upon the calendar and otherwise proceeding as if the reference had not been ordered. Niles v. Maynard, 28 How. Pr. 390. When more then 60 days have elapsed since the final submission of the case, the court has no power to enlarge the time for the delivery or filing of the report, after the attorney for one of the parties has served notice of termination of the reference. Gregory v. Cryder, 10 Abh. Pr. N. S. 289. Upon the question as to when a submission of the case takes place, and the referee's time to report begins to run, it is generally held that the same does not occur until the time to hand in briefs has expired, and the referee has power to enlarge that time, and unless the discretion in that particular is abused, the court will not interfere. Morrison v. Laurence, 2 How. Pr. N. S. 72. But the fact that counsel for one of the parties omitted to leave with the referee certain exhibits given in evidence by him, and certain calculations made by such counsel, and used by him in summing up the case, will not prevent the running of the 60 days and render of no effect service of notice of termination of the reference.. Gregory v. Cryder, 10 Abb. Pr. N. S. 289. c. Extension by consent—Oral stipulations. It follows as a matter of course, that a referee's time to report may be extended by written stipulation of the parties. EXTENSION OF TIME FOR REFEREE TO REPORT,-continued. Berls v. Met. El. R. R. Co. 37 St. Rep. 608; 15 Supp. 155. Thiesselin v. Rosett, 3 Abb. Prac. N. S. 54. A letter, written by the two attorneys to the referee who had failed to report within the 60 days, stating that his time to report had expired, but that they were not disposed to terminate the reference unless he so desired, and that they would feel better satisfied to sum up the case orally, which they subsequently did, will not operate to extend the time for the referee to report beyond 60 days from such argument, so that neither of the attorneys can terminate the reference by service of the statutory notice. Richards v. Bloom, 5 Hun, 182. The referee's time to file or deliver his report may be extended beyond the 60 days by the parties orally consenting thereto, at a hearing before such referee, notwithstanding Rule 11 of General Rules of Practice, providing that stipulations, to be recognized by the court, must be in writing. Livingston v. Gidney, 25 How. Pr. 1. Ballou v. Parsons, 67 Barb. 19, Aff'd 55 N. Y. 673. Thus where the parties at a hearing before the referee, verbally agree to give him such time as he may need to render his decision and report, the latter may rely thereon and enforce the same. Livingston v. Gidney, 25 How. Pr. 1. Furthermore, where by such oral agreement, the referee's time to report is extended indefinitely, a party cannot terminate the reference by serving the notice prescribed by § 1019. Ballou v. Parsons, 67 Barb. 19. In the case last cited the court stated that it seems the proper method of terminating the stipulation for indefinite extension is by service upon the opposite attorney and the referee of a notice that unless the report is made and delivered within a reasonable time, to be specified, the reference will be Leemed ended. But the court will not recognize an alleged oral stipulation that the referee might have all the time he desired in which to decide the case, where the attorney for the plaintiff and the referee asserted that such stipulation was made at the time of the submission of the case, but no memorandum of the same was entered in the minutes, and the attorney for the defendant and his clerks denied the making thereof. Patterson v. Knapp, 83 Hun, 492; 65 St. Rep. 188; 32 Supp. 32; 24 Civ. Pro. 251. d. Extension by waiver of parties. By failure to serve notice of termination of the reference, or take some other action inconsistent therewith, the parties waive the filing or delivery of the referee's report within sixty days from the date of the final submission of the case. Appellate Division. Mantles v. Myle, 26 How. Pr. 409. Lampman v. Smith, 17 Civ. Pro. 19; 7 Supp. 922. Nealis v. Meyer, 21 Misc. 344; 81 St. Rep. 156; 47 Supp. 156. [Dec. It is a waiver of the right of the attorneys to require the filing or delivery of the report within the 60 days, where all the parties in interest thereafter sign a request to the referee to make a supplemental report on the question of costs, as an existing operative reference at that date is thereby admitted. Merritt v. Merritt, 18 App. Div. 313; 79 St. Rep. 833; 45 Supp. 833. The doctrine of waiver has no application, and a referee's report will be set aside as having been made too late, where, after the expiration of 60 days, the defendants' attorney inquired of the referee if he had made his decision or report, and being informed that he had not, the attorney informed him that his powers as referee were at an end and then placed the case upon the calendar, after which the referee filed his report. Niles v. Maynard, 28 How. Pr. 390, Aff'd 6 Alb. L. J. 198. LIVINGSTON v. LIVINGSTON. [46 App. Div. 18; 95 St. Rep. 299; 61 Supp. 299.] (Supreme Court, Appellate Division, First Department. December 8, 1899.) DIVORCE JUDGMENT-MODIFICATION OF ALIMONY. After a judgment disposing of the question of the amount of alimony to be paid, and the conditions under which it shall be paid, without any reservation of power to modify it, it cannot be modified by insertion of such a reservation. NOTE.-MODIFICATION OF DECREE AS TO ALIMONY. An exhaustive note on this subject will be found in 5 Ann. Cas. 9. Since the publication of that note the following pertinent adjudications have been made. Where the decree expressly reserved the question of alimony for further consideration, the court has jurisdiction to make an order awarding ali mony. Hauscheld v. Hauscheld, 33 App. Div. 296; 87 St. Rep. 831; 53 Supp. 831. The appellant in the case last cited contended that the rule stated in the last paragraph had been changed by the decision of the court of appeals in Walker v. Walker, 155 N. Y. 77; 49 N. E. 663. This contention was, however, rejected and it was held that there was no intention of overruling 1899] Livingston v. Livingston. Appeal from special term, New York county. Action by Mary W. Livingston against William S. Livingston. From an order denying defendant's motion to modify the judgment, he appeals. Affirmed. Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and INGRAHAM, JJ. James MacGregor Smith, for appellant. A. H. Hummell, for respondent. INGRAHAM, J. On April 28, 1882, a judgment was entered in the superior court of the city of New York by which the marriage between the plaintiff and the defendant was dissolved, the care and custody of the two minor children, the issue of the marriage, awarded to the plaintiff,,and the defendant directed to pay to the plaintiff the sum of $4,000 a year alimony, and to MODIFICATION of Decree AS TO ALIMONY,-continued. Galusha v. Galusha, 138 N. Y. 272; 33 N. E. 1062; and People v. Cullen, 153 N. Y. 629; 47 N. E. 894, upon which such rule was founded, expressed, or implied in Walker v. Walker. Where a judgment charging the payment of alimony upon the income of a trust fund contained a provision that the husband might apply for a modification permitting him to share in such income, such modification should not be made upon affidavits but only upon a trial of the issues raised, the affidavits serving as quasi pleadings. Wetmore v. Wetmore, 29 App. Div. 507; 85 St. Rep. 797; 51 Supp. 797. The husband is not entitled to such modification on proof that his former wife's circumstances have changed and that she does not need the entire income of such trust fund. Wetmore v. Wetmore, 44 App. Div. 220; 94 St. Rep. 711; 60 Supp. 711, Reversing 27 Misc. 700; 93 St. Rep. 586; 59 Supp. 586. In New Jersey the chancellor has power to amend a decree of divorce by inserting therein a reservation of the right to apply for alimony, where the omission of such reservation from the original decree was the result of the inadvertence of counsel, and not the deliberate act of the petitioner. Lynde v. Lynde, 41 App. Div. 280; 92 St. Rep. 567; 57 Supp. 567. give a bond, in the penalty of $10,000, conditioned for the due payment thereof. Such bond was duly given, and such judgment remains in full force. There was no provision in this judgment reserving the power to modify the judgment as to alimony, or in any other particular. It has been held that, where such a power is reserved by the judgment, the judgment is not final as to such matters as were reserved for future consideration, and that the court has power to subsequently modify the judgment as to the particulars relating to the matters reserved. Hauscheld v. Hauscheld, 33 App. Div. 296; 87 St. Rep. 831; 53 Supp. 831, and cases cited. It has also been held that, where no such power is reserved by the final judgment, the court has no power to modify or alter the judgment, except so far as is nec essary for its enforcement or to correct a mistake. Walker v. Walker, 155 N. Y. 80; 49 N. E. 664. In that case, Judge Martin, delivering the opinion of the court, says: "Under that statute, as well as under the Revised Statutes, after the entry of a final decree establishing the rights of the parties the court had no power to order an additional allowance for the support of the wife. The jurisdiction of the court over the subject-matter of such an action, and of the parties, in respect to the matters involved in it, terminated with the entry of a final judgment, except as to proceedings for the enforcement of it, or to correct any mistakes in the record." Upon the final rendition of this judgment, therefore, the court had no power to modify the decree, so far as the substantial rights of the parties were concerned, except to correct mistakes. Of course, it was not intended to limit the power of the court to vacate or set aside a judgment for fraud, or where in conse quence of an omission or mistake, justice required the modification. But, so far as the substantial question in dispute between the parties was concerned, a judgment thus duly entered, the court having jurisdiction of the parties and the subject-matter, could only be reversed or modified on appeal. The defendant does not dispute this principle, but applies to modify the judg ment by inserting in it a clause reserving to the court the right |