#### IVES v. IVES.

(Supreme Court, General Term, Third Department

July 14, 1894.)

1. Reference—Action for Divorce—Referee Named by Parties.

Code Civ. Proc. § 1012, providing that, where an action for divorce is referred, “the court must designate the referee,” and Gen. Rule Prac. No. 73, providing that in such an action the court shall “in no case” appoint a referee nominated by either party or agreed on by the parties, are intended to prevent collusive divorces, and will be applied in all cases, without inquiring whether or not there is genuine contest. 28 N. V. Supp. 170, reversed.

2. Same—Striking out Name of Referee.

"Where plaintiff in an action for divorce, as a condition of obtaining a postponement of the trial, consents to a reference, and the court improperly appoints a referee agreed on by the parties (Code Civ. Proc. § 1012), the order of reference is not vitiated thereby, but it will be modified by striking out the name of the referee.

8. Motion to Set Aside Order—Power of Coort to Modify.

Where a motion is made to vacate and set aside an order of reference, and “for such further or different rules or order as the court may deem proper,” the court may modify the order in question.

4. Attorney and Client—Repudiation of Authority.

Where an attorney has made a stipulation, and the court has acted on it, and the client has had the benefit thereof, it is too late for him to repudiate the attorney’s authority to make such stipulation.

Appeal from special term, St. Lawrence county.

Action by Annie Ives against James Ives for a divorce. From an order denying a motion to set aside an order of reference (28 N. Y. Supp. 170), plaintiff appeals.

Modiiied.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ. .

C. W. Thompson (John Conboy, of counsel), for appellant.

George Morton (Daniel Magone, of counsel), for respondent.

HERRICK, J.

The case of the appellant upon this appeal is one that does not commend itself to the favorable consideration of the court. The action is one for divorce on the ground of *1054adultery. When the case was upon the circuit calendar for trial, a motion was made on behalf of the plaintiff to put it over the term on account of the illness of the plaintiff, and in deciding the motion for a postponement the court announced that the case could be set down for trial the following week of the term, or, if the plaintiff preferred, it might go to the special term for trial, or to a reference. Thereupon the counsel for the respective parties agreed to a reference, and presented to the court an order containing the name of the person who had been agreed upon by them as the referee in the case, and the court directed the entry of the order. Thereafter, and after the adjournment of the circuit court, a motion was made on behalf of the plaintiff to vacate and set aside such order of reference as having been improvidently made, and being in violation of the rules and practice of the court; the plaintiff stating in the moving affidavit “that she did not consent or know that a reference was to be had or ordered in this case until after the return of her said attorney;” that she then informed her attorneys that she was dissatisfied with the order of reference, and that she at no time- consented to a reference. The special term denied the motion to vacate such reference, whereupon the plaintiff appeals to this court.

In so far as to the order appealed from designates a person, as referee, who was agreed upon by counsel for the respective parties, I think it was irregular, and should have been modified, and the court at special term should have designated another referee. Section 1012 of the Code, after referring to several classes of actions, among them actions for divorce, says:

> “In the cases specified in this section, where the parties consent to a reference, the court may, in its discretion, grant or refuse a reference; but where a reference is granted, the court must designate the referee.”

It seems to me that the spirit and intention of the section that I have quoted is that the court, in case a reference of the case has been already consented to, must, of its own motion, and without consent or agreement thereto by the counsel or parties as to the person, name the referee. This construction of the section is strengthened when section 1012 is read in connection with section 1011, which provides that all cases except those specified in section 1012 must be referred upon the consent of the parties, manifested by a written stipulation signed by the attorneys for the parties and filed with the clerk, and that, “where the stipulation does not name the referee, he may be designated by the court, on motion of either party. Where the stipulation names the referee, the clerk must enter an order, of course, referring the issue or issues for trial to that person only.” That is, the section provides that in all cases, except those mentioned in section 1012, the parties can absolutely control the selection of the person before whom their case shall be tried. It is in sharp contrast to section 1012. The provisions of each emphasize and bring out distinctly the spirit and intention of the other. Section 1012 is supplemented and made certain by rule 73 of the rules of practice of the supreme court, which, in the case of divorce, *1055provides that “the court shall, in no case, order the reference to the referee nominated by either party nor to the referee agreed upon by the parties.” The reason for the adoption of that portion of section 1012 *of the*Code and of rule 73 that I have cited was to prevent collusion between parties in the procuring of divorces. It is said in this case that there is a genuine contest, evidenced by the nature of the issues, and the behavior of the parties and their counsel, and that, therefore, the reason for the adoption of the rule in question does not apply to this case, and that, consequently, there is no occasion for its enforcement. I do not think that such reasoning can justify the violation of a very plain rule of practice. To permit it would be to throw the burden upon the court in every case coming before it, where an application is made for a reference, and the referee named by the parties, of determining whether there is a bona fide and genuine contest between the parties. The court will have to determine whether the hostility exhibited is real or simulated, and in a large majority of the cases presented to the court it has no means of determining any such questions. As heretofore stated, the selection of the referee was in violation of the spirit, if not of the letter, of section 1012 of the Code, and in plain violation of the spirit and letter of rule 73. The case of Fullmer v. Fullmer, 6 Wkly. Dig. 42, I do not think in point in this case. The questions there raised came up upon the coming in of the referee’s report and the application for a judgment thereon. The court said:

> “The reference was not void for a selection of a referee contrary to the rule. The failure of the plaintiff to attend was a matter in regard to which he must seek relief by application to the discretion of the court or of the referee. These affidavits should have been presented to the court by way of a special motion, not on a hearing upon the merits upon the application for judgment.”

That is a plain recognition that a reference so made is a violation of the rule, and it simply decides that it is too late to raise such questions after the case has been tried by the referee‘agreed upon, and indicates that an application for relief from such an order should be made before trial, as has been done here in this case. In addition thereto, it may be stated that at the time of this decision (1878) that portion of section 1012 of the Code before alluded to had not been enacted. We are not at liberty to disregard the rules of the court. They have the same force and effect that the statutes have, and we have no more right to disregard them than we have to disregard the statutes of the state. In re Moore, 108 N. Y. 280, 15 N. E. 369. I think, therefore, that the court was in error in designating the person agreed upon by the parties to the action as the referee therein.

The appellant’s contention, however, goes further than simply vacating the order of reference as to the person designated as referee. She insists that, the referee being improperly named, the whole order of reference falls through; citing the case of Presten v. Morrow, 66 N. Y. 452, which says that:

> “By consenting to refer to a particular referee, named in the consent and in the order, the parties did not waive the right to a trial either by the court or *1056by a jury, if, for any reason, the reference agreed upon should fall through. Upon the death, removal, or refusal of the referee to act, the actions were again in the court for trial as prescribed by law, as if no. reference had been consented to.”

That case was decided under the old Code of Procedure, and which differed materially in respect to the control of the court over references from the present Code. But, in addition to that, there are features in this case that distinguish it from the case of Presten v. Morrow. In this case there was a consent in open court to a reference, not to any particular person, but that the case should be referred. The plaintiff agreed to it as a condition of not then and there going to trial. The naming of a particular person as referee was an after-matter; and, because a stipulation was entered into, which the court acceded to, and which was in violation of the rules of practice and the Code, the plaintiff cannot now, in good faith, after she has received the benefit derived from the stipulation to refer the case for trial, ask to have the whole order vacated because that portion of the order designating the particular person before whom the reference was to be tried was improperly made. Further than that, the plaintiff’s motion is capable of division. Her motion was not simply for an order vacating and setting aside the order of reference, but was “for such other, further, or different rules or order as the court may deem proper.” Under such a prayer for relief the court can modify the order previously granted, and correct the error into which it had been led by the plaintiff’s counsel. The plaintiff, in her affidavit, states that she never consented to a reference. The court can only deal with parties to actions before it; when they are represented by attorneys, through their attorneys. The agreements and stipulations of such attorneys are the agreements and stipulations of the parties; and where an attorney for a party has entered into an agreement, and the court has acted upon it, it is too late.for the party to repudiate the authority of the attorney after reaping the benefit of his action. The plaintiff’s attorney here elected to have the case tried by a referee as a condition of postponing the trial. The trial of the case was accordingly postponed. She must be held to his agreement in open court to try the case as a reference, the referee to be. designated according to law and the rules and practice of this court. The order appealed from should therefore be modified, and the original order of reference also modified by striking therefrom the name of the person therein designated as referee, with $10 costs of such motion, to be paid by the plaintiff, without costs of this appeal to either party. Either party may apply, upon, notice, to a special term of the court, for the appointment of a referee to hear and determine this action pursuant to the consent of the parties entered into in open court that this case should be tried before a referee. All concur.