
    Maggie Pratt, by Guardian, etc., App'lt, v. Spencer Charles Pratt, Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    1. Divorce—Reference.
    Where, in an, action for divorce, the court appoints a referee agreed upon by the parties, it is a direct violation of the provisions of the Code and General Rules of Practice.
    2. Same.
    In such case, a suecial term is right in refusing to act upon the referee’s report and in setting aside the order of reference.
    Appeal from an order, denying plaintiff’s motion for .judgment on the report of a referee, and from an order, vacating the order <of reference and appointing a new referee to hear and determine the action.
    Thomas McAdam, for app’lt; Isaac N. Miller, for resp’t.
   BARRETT, J.

Upon the 26th day of April, 1895, the parties hero agreed upon a referee, and the court thereupon appointed the referee so agreed upon. This was a direct violation of the mandates of the Code of Civil Procedure and of the General Rules of Practice. Section 1012 of the Code provides that, when a reference is granted in an action to annul a marriage or for a divorce or a separation, the court must designate the referee. Rule 73 of the General Rules of Practice then provided, as rule 72 now provides, that in such actions the court “shall in no case order the reference to a referee agreed upon by the parties.” Procedure in disregard of these provisions is not a mere irregularity. Such procedure is unquestionably void. The law was not enacted, nor was the rule established, for the benefit of the parties to matrimonial actions, but for the public good. In this respect the mandate and prohibition differ from the regulations with regard to referees in foreclosure and partition actions. The latter regulations were adopted to secure fair dealing upon judicial sales, and to prevent one party from overreaching the other. The former regulations were enacted to prevent one party from colluding with the other. Public policy favors the continuity of the marital union. It condemns any breakin that continuity not specifically authorized bylaw'. For this reason the parties are permitted, as they, are in ordinary controversies, to admit the facts, or to waive proof thereof; nor is the court permitted to grant relief upon their consent. To render these interdictions effectual, to prevent the possibility of their being evaded, the referee rule was adopted. It is distinctly in harmony with the statute. The statute says that the court must designate the referee. To guaranty strict compliance with this mandate, the rule declares that the court shall not in any case “order the reference to a referee nominated by either party, nor to a referee agreed upon by the parties.” What is that but saying that the court must designate the referee freely, independently, and without a breath of suggestion? The moment the rule is successfully invaded, that moment the statute falls. If parties may walk through or around these regulations to a tribunal of their own arrangement, they can as readily walk through or around all the obstacles which the law places between them and their desires. Given their own friendly tribunal, and what becomes of the remaining statutory safeguards? There can be no compromise here with evasion or trifling. To make an exception of a hard case would simply be the entering wedge for the destruction of a system devised to prevent collusive divorce or separation. The court does not act in favor of or against either party. It listens to no suggestions of estoppel. It learns of the abuse of its authority, and thereupon, of its own motion, it sets the matter right. Thus, the parties are brought back to the precise point at which they were when they deviated from the straight line. The special term was right in refusing to act upon the referee’s report, and in setting aside the order of reference. It erred, however, in appointing a new referee. The consent which we condemn was not a consent to refer generally; it was a consent to réfer to the referee named in the order. The reference, therefore, fell with the vacating of the order.

It follows that the order denying the motion to confirm the referee’s report should be affirmed, without costs; and the order vacating the order of reference should be modified by striking out the the provision referring the issues to another referee, and, as-thus modified, affirmed, without costs.

All concur.  