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Ament v. Schubert Piano Co.

172 A.D. 423 Court First Department, Decision date 1916-04-20 English

Delivered by Page, J.:

Contents

Majority

p. 423
Charles L. Ament, Appellant, v. Schubert Piano Company, Respondent.
First Department,
April 20, 1916.

Headnote

Reference — fees of referee — acceptance of fees before completion of case — request for security — removal of referee.
Where a referee, appointed to hear and determine the issues after the plaintiff has moved to amend his complaint to include further items of damage, which would probably involve the taking of considerable additional testimony, requested that both sides give security for the payment of the referee’s and stenographer’s fees, which the plaintiff was unable to do,
p. 424
and also accepted his fee from the defendant before the reference was completed, he should be removed, and his report vacated and set aside. Under ordinary circumstances a referee’s right to his fees does not accrue until he has completed the reference and filed or delivered his report. He should not request or accept payment so long as there remains any duty of a judicial nature for him to perform.
Appeal by the plaintiff, Charles L. Ament, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of March, 1916, denying his motion to vacate an order of reference herein.
Robert E. McLear, for the appellant.
Bertram L. Kraus, for the respondent.
Abraham B. Keve, referee, in person.

This motion, made by the plaintiff to remove a referee appointed to hear and determine the issues, is based principally upon two alleged acts of misconduct on the part of the referee: First. That near the end of the trial and after plaintiff had moved to amend his complaint to include further items of damage which would probably involve the taking of over a thousand pages of additional testimony, the referee called into another room both the plaintiff’s and defendant’s attorneys and requested that both sides give security for the payment of the referee’s and stenographer’s fees. The plaintiff’s attorney and the plaintiff, who was called in, stated that plaintiff could not give security. The defendant’s attorney stated that his client would give security if the plaintiff would. The matter was then dropped as the plaintiff could not give the security and the reference proceeded. The plaintiff decided not to amend the complaint. The plaintiff claims that the referee was prejudiced against him after this episode and demonstrated the prejudice by his rulings on the evidence and in the matter of submitting briefs.

The second act of misconduct alleged is that the referee accepted his fee of $2,500 from the defendant before the reference was completed. In support of this charge it appears that

p. 425
on December 23, 1915, the referee announced his determination in the form, of a written opinion directing findings in accordance therewith to be submitted. The defendant on December twenty-fourth paid the referee his fee of $2,500. In his affidavit, to justify his fee, the referee states that he devoted fifteen hours to this case between that date and the 15 th day of January, 1916, when the findings were signed.

The request of the referee for security put the plaintiff in an embarrassing and disadvantageous position. While it may be that the referee was not influenced by the refusal of the plaintiff to give the security demanded, although the defendant offered to give the security if the plaintiff would, it cannot be said that others may not fairly doubt it. No such doubt should be allowed to exist in the absolutely fair and unbiased judgment of a judicial officer. (Smith v. Dunn, 94 App. Div. 429 , 437; Topia Mining Co. v. Warfield, 145 id. 422.) The demanding and receiving his fees prior to the completion of his decision was even more reprehensible. It is well settled that under ordinary circumstances a referee’s right to his fees does not accrue until he has completed the reference and filed or delivered his report. (Hebard v. City of New York, 137 App. Div. 752 .) He should not have requested nor accepted payment so long as there remained any duty of a judicial nature for him to perform.

The motion should have been granted. The order will, therefore, be- reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, removing the referee and vacating- and setting aside his report, and the matter remitted to the Special Term.

Clarke, P. J., Laughlin, Dowling and Davis, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted as stated in opinion, with ten dollars costs. Order to be settled on notice.

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