Where the parties to a divorce action consent to a reference, the court may appoint a referee or refuse the reference in its discretion. (Code Civ. Proc. § 1012.) Therefore, the Rules of Practice may prescribe in what cases and in what manner such discretion may be *604exercised, and under what circumstances a reference may be granted. Bule 72 of the General Buies of Practice provides that in divorce cases “ The court shall in no case order the reference to a referee nominated by either party nor to a referee agreed upon by the parties, nor without proof by affidavit conformable to the rules relating to the manner and proof of the service of the summons and complaint. Notice of appearance and retainer shall not be sufficient to excuse such proof.”
In Ives v. Ives (80 Hun, 136) it was held that in a litigated case under the above rule the referee could not be agreed upon by the parties. McCarthy v. McCarthy (143 N. Y. 235) recognizes that the rule applies as well to litigated as to default cases, and that even in a litigated case, unless the complaint alleges want of connivance etc., as required by the rule, an affidavit to that effect must be filed before judgment can be rendered. It holds, however, that the allegation of want of connivance, etc., is not inserted in the complaint as an issuable allegation, but only to comply with the rule and to avoid the necessity of filing an affidavit. The order of reference, therefore, was in violation of the provisions of this rule, and judgment was properly denied.
The order of reference was entered by the clerk, upon consent of the attorneys. The referee was apparently agreed upon by counsel, in violation of the provisions of the above rule.
There is another reason why judgment should not be entered upon this report. The strict practice prescribed in divorce cases was adopted for the public good, and to prevent collusive and fraudulent divorces, and should be enforced in a way to prevent the evils intended to be guarded against. Buie 72 also provides that no reference shall be had where the defendant fails to answer, but the case must proceed in open court. As matter of substance and of right the defendant did not answer in this case, and to enter judgment upon the referee’s report would sanction a practice which in mány cases would open the door for collusive and fraudulent divorces. In an affidavit attached to the summons and complaint one Perkins swears that he served them upon the defendant at Portland, Ore., and that the person served acknowledged to the affiant that he was the defendant, that the plaintiff was his wife, that his mother-in-law, Mrs. Allen, resided at Saratoga Springs, and *605that he had previously conducted a stationery store at that place. It is evident that Perkins did not know the defendant, or the person served, but relied entirely upon the statement made to him by an unknown person. Such proof of service would not be sufficient to authorize the entry of judgment in any kind of an action. The affidavit also shows that at the same time the party served ■ signed the certificate contained in the record, in which he admitted that he was the defendant and that “ the allegations in said complaint are substantially true in every respect,” and that due service of the summons and complaint was made upon him at Portland, Ore., and he authorized the attorney named “ to represent me in said action.” This certificate is witnessed by Perkins. There is no other evidence in the record that the person who signed this paper was the defendant. It is evident that the person making the alleged service was aware that such service was not valid, and, therefore, he obtained the certificate in order to dispense with a proper service.
The attorney named served an unverified answer denying the adultery. lie attended at the trial, and by cross-examination asked several perfunctory questions of the plaintiff’s witnesses. The questions and the answers sought could be of no benefit to the defendant, and only tended more completely to show his guilt. From the record I think we may fairly assume that the certificate was delivered to the attorney named therein by the plaintiff’s attorney. There is no evidence of any retainer by the defendant of an attorney in the action, or of any communication between him and his alleged attorney. The certificate did not authorize the attorney to appear and answer; it permitted him to do whatever was necessary to represent the defendant, which we assume may mean to protect any interest which required protection. In the certificate the defendant admits his guilt, and, therefore, the attorney was not called upon to serve an answer denying his guilt. There had been ' no service upon the defendant and no action was pending. There was, therefore, no occasion for the attorney to answer. The record contains all the ear-marks of a friendly litigation, in which the defendant was as anxious for the judgment as the plaintiff, and both were evidently working to that end. The only use of an answer in this case was to take the case away from the court where it would be tried in public and have the proceeding before a referee. Had *606the facts been known to the court before the referee was named it is certain the order would not have been made. I think, therefore, the answer interposed was interposed in fact by the plaintiff, and for her sole benefit, and that the defendant was acting to assist her in obtaining a divorce. The case was not, therefore, a litigated one, but to all intents and purposes should be treated as one of default, if it is to be considered a live case for any purpose.
If an appearance by an attorney in a divorce case may take the place of the service of a summons, it does not dispense with the proof of identity of the person who authorizes the attorney to represent the defendant. Proof should be made on that subject substantially as convincing as is required in the case of the service of a summons. The presumed authority of an attorney should not dispense with other proof. Here the alleged authority appears and it is not properly authenicated. If this case had proceeded before the court it would have investigated more thoroughly the proof of the identity of the defendant and satisfied itself that the defendant was in court. The entry of the order of reference by consent naturally took that matter in quite a degree from the attention of the court. I am not considering the question whether the court upon a trial before it may render judgment in a case where the defendant appears by attorney and no personal service has been made. It is unnecessary to consider whether such a case is within the letter or spirit of the rule. I think that a divorce case cannot be referred if the defendant has not been served with the summons, and that in this case, within the true spirit of the rule, no answer was interposed by the defendant; that the alleged answer was collusive and that the plaintiff can gain no benefit therefrom. I, therefore, favor an affirmance of the order.
Order reversed and case remitted to Special Term for rehearing, with ten dollars costs and disbursements.