#### Catherine L. Boyer, Respondent, *v.*Frank W. Boyer, Appellant.

Second Department,

December 30, 1908.

Husband and wife —separation—judgment by consent.

A judgment of separation entered by consent and based on findings agreed to by the parties without evidence supporting the allegations of the complaint is void.

A defendant by consenting to the entry of such judgment is not estopped from attacking its validity.

W.here the original judgment of separation is void, a subsequent order appointing a receiver for the defendant on his refusal to pay alimony will be reversed.

Rule 76 of the General Rules of Practice, providing that no judgment in matrimonial actions shall be made “of course” on the default of the defendant or in consequence of any neglect to appear or by consent, has all the force of a statute, and the court is not at liberty to disregard it.

Appeal by the defendant, Frank W. Boyer, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 22d day of July, 1908, appointing a receiver for the defendant, who had refused to pay alimony as directed by the judgment in an action for separation.

*Arnold L. Davis [Claude A. Thompson*with him on the brief], for the appellant.

*William*Chilvers, for the respondent.

Rich, J.:

Rule 76 of the General Rules of Practice provides that *“*No judgment annulling a marriage contract or granting a divorce, or for a separation or limited divorce, shall be made of course by the default of the defendant, or in consequence of any neglect to appear at the hearing of the cause, or by consent.”

It appeal’s that the findings upon which the judgment was based were agreed upon by the parties; that the judgment was entered by consent, and that no evidence was given in support of the allegations in the complaint; in other words, that the judgment was entered by consent of the parties and without evidence to sustain it.

The only question presented by this appeal is whether the original decree is valid. I think it is not, because it was made in violation *648of the mandatory rule of the court, which had all the force and effect of a statute *(People ex rel. Mayor*v. *Nichols,*18 Hun, 535 ; *Matter of Moore,*108 N. Y. 280), and the court was not at liberty to disregard it. In *Pratt*v. *Pratt*(2 App. Div. 534), which was an action to annul a marriage, upon appeal from an order vacating so much of an order of reference as appointed the referee agreed upon by the parties, Mr. Justice Barrett, speaking of section 1012 of the Code of Civil Procedure and rule 73 of the General Buies of Practice, which is now rule 72, and which provides that in such actions the court *“*shall in no case order the reference to a referee * * * agreed upon by the parties,” said : “ 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 break in that continuity not specifically authorized by law. For this reason the parties are not 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 guarantee 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 *649their desires. Given their own friendly tribunal, and what becomes of the remaining statutory safeguards ? ”

It is contended by the learned counsel for the respondent that defendant having submitted to the jurisdiction of the court and consented to the entry of the decree, cannot now he heard to complain. The trouble with this contention is that he consented to the very tiling which the rule provided should not be done, and no jurisdiction could be conferred upon the court to violate it. The rule was not adopted to convenience the parties to such' an action, but to prevent collusion.

The original decree, as well as the order fixing the alimony, was invalid, and it follows that the order appealed from must he reversed.

Woodward, Jenks, Hooker and Miller, JJ., concurred.

Order reversed, without costs.