Smith v. Dunn — 91 A.D. 200

Majority

p. 200

Terence A. Smith, Respondent, v. Thomas J. Dunn and Bartholomew Dunn, Appellants, Impleaded with Bessie Mahon, as Administratrix, etc., of Bernard Mahon, Deceased, Respondent.

Headnote

Referee — removed because of Ms discussing the case with a witness out of court.

A referee who, although not actuated by improper motives, discusses with a witness out of court, in the absence of counsel for the respective parties, facts connected with the subject-matter referred to him and as to which the witness is to testify, should be removed and a new referee be appointed.

The appearance of fairness in judicial proceedings is almost, if not quite, as important as fairness itself.

p. 201

Appeal by the defendants, Thomas J. Dunn and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew ■ York on the 14th day of December, 1903, denying the said defendants’ motion to remove a referee theretofore appointed in the action and to have a new one appointed.

Jacob Marks, for the appellants.

Jacob Fromme, for the respondents.

Herbert Delavan Mason, for Henry W. Mayo, referee.

It may be conceded that the referee had nó improper motives in what he did. His acts, nevertheless,' were so indiscreet in discussing with the witness O’Heill out of court, in the absence of counsel for the respective parties, facts connected with the subject-matter referred to him and as to which such witness was to testify, that we think the due administration of justice .requires another referee should be appointed. The appearance of fairness, if confidence is to be maintained in judicial decisions, is almost, if not quite, as important as fairness itself; and for this reason it has been held by a long line of decisions in this State that whenever the acts of a referee out of court, with reference to or connected with the subject-matter referred to him, may possibly render his acts in court suspicious or subject him to criticism, so far as fairness is concerned, then he ought not longer to serve.

The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements, and the' action remitted to the court below for the appointment of a new referee.

Van Brunt, P. J., Hatch and Laughlin, ,JJ., concurred; Ingraham, J., concurred in result.

Order reversed, with ten dollars costs and disbursements, and the case remitted to the court1 below for the appointment of a new referee.