Reynolds v. Moore

Headnote

Reference—Misconduct of Referee—Setting Aside Report.

On an application to set aside the report of a referee for misconduct, it appears that the referee conversed with defendant’s counsel on the merits of the case, in the absence of plaintiff’s counsel, saying that he thought he would have to decide in defendant’s favor; that he was writing an opinion on the case, and plaintiff’s testimony was unsatisfactory, and needed corroboration. The referee further stated to defendant’s counsel that the stenographer would look to him for payment of the bill. The counsel objected to the bill as excessive, and refused "to pay it. About a month later, the referee reported in favor of plaintiff, and it then appeared that plaintiff had paid the stenographer’s bill in full. Held, that the report should be set aside.

On the hearing in the general term of the court of common pleas, Judges BISCHOFF and PRYOR each delivered an opinion (December 2,1895), as follows:

BISCHOFF, J. Where the fact of the operation of undue influence upon a referee is actually proven, the courts have never hesitated to set aside the report on motion, and this irrespective of the degree of the influence and its probable weight with the referee when rendering his decision. But the charges must be established by affirmative proof, and no rule of policy renders a mere opening for surmise or suspicion of their truth sufficient to rebut the presumption of rightful action upon the official’s part. The reconsideration by him of an opinion informally expressed to counsel has little, if any, weight in the matter. Gray v. Fisk, 12 Abb. Prac. (N. S.) 213; Ayrault v. Sackett, 17 How. Prac. 507. In this case the charge made was met by the oaths of opposing affiants, and a conflict of evidence as to the fact resulted. Apart from the evidence for the respondent, offered in the form of affidavits, uncontradicted testimony was given in open court in absolute disproof of the claim that the referee had any pecuniary interest

Appeal from court of common pleas, special term.

Action by William J. Reynolds against the mayor, aldermen, and •commonalty of the city of New York, Joseph Moore, and the Mt. Morris Bank, to foreclose a mechanic’s lien, originally brought in the court of common pleas of the city and county of New York. An order denying a motion to set aside the report of the referee for misconduct was entered J une 3,1895, and an appeal therefrom was taken to the general term of the court of common pleas, and was argued at the November term following, before Judges BISCHOFF and PRYOR. The judges failed to agree, and a reargument was ordered. The reargument now comes on for hearing in the appellate division of the supreme court, to which all litigation pending in the superior city courts on January 1,1896, was transferred by the judiciary order of the constitution of 1895. Reversed.

in the stenographer’s fees, which alleged interest formed the basis of the charge made; and since the learned judge below, having the witness before him, was impressed with the truth of this evidence, we are not to hold that the contrary was to be taken as proven merely upon the controverted allegations of the opposing affidavits, showing circumstances which might be viewed either as supporting a suspicion of irregular action or the reverse. The whole question was one of fact, and the result arrived at in the original tribunal, that the moving party’s position was not sustained by proof, should remain undisturbed.

Order affirmed, with $10 costs and printing disbursements.

PRYOR, ,T. The learned judge at special term refused to set aside the report of the referee, for insufficient evidence of “the charge of corruption and malfeasance.” I do not understand that, by the law of New York, proof of a mercenary or improper motive in his decision is requisite to invalidate a referee’s report. In titebbins v. Brown, 65 Barb. 272 , while a case was pending before a referee, he accepted a retainer in a cause from the plaintiff. Held, that on this ground alone the report should be set aside; the court saying that “we do not deem it important to inquire whether the decision of the referee was or was not affected favorably to the plaintiff by his retainer. * * * The rule should be inflexible that such a fact will, ipso facto, avoid the report of a referee. No other rule will protect the referee from the approach of temptation, or shield the administration of justice from the suspicion of impurity.” In Yale v. Gwinits, 4 How. Prac. 253, where a referee, during an adjournment, personally examined a piece of machinery the utility of which was the subject of the litigation, and received explanation of its operation by two of plaintiff’s witnesses, without the knowledge or consent of the defendant, a report in favor of the plaintiff was set aside; the court saying that “a referee ought not to place himself in a situation which may expose him to be influenced in his decision by conversations with third persons, in the absence of the parties.” In Dorlon v. Lewis, 9 How. Prac. 1, speaking of private conversations of a referee with the attorney of a party, the court said: “A referee, under such circumstances, owes it to himself, not only to avoid all improper influences, but even the appearance of evil. Whether satisfied with the decision or not, no one should be left, for a moment, to question its fairness.” In Roosa v. Turnpike Road Co., 12 How. Prac. 297, “although nothing in the ease would justify the conclusion that the referee had, in the least degree, intended to "swerve from an honest discharge of his duty,” his report was set aside; tlie court saying: “All agree that the administration of the law must be pure and impartial. But it is scarcely less important that the conduct of those to whom its administration is intrusted should be such as to furnish to those who litigate no just ground of suspicion.” In Carroll v. Lufkins, 29 Hun, 17 , the court said that “whether or not the referee had been influenced or was likely to be influenced” by the fact alleged against him “is immaterial. He may be affected by it unconsciously; and the rule suggested should prevail, if for no other reason, to protect referees from temptation and the suspicion of having been influenced by improper motives.” In Greenwood v. Marvin, 29 Hun, 99 , in affirming an order setting aside the report of a referee, the court said: “Referees ought, like jurors, to be vigilant to avoid evil; to avoid taking a line of conduct which may affect their freedom of mind and neutrality. Ex parte treaties and conversations with either party as to any fact, point, or fee ought to be avoided.” In Burrows v. Dickinson, 33 Hun, 492 , in setting aside the report of a referee, the court at general term said: “Even the appearance of improper influence and bias must be avoided. If it is not, the confidence of the public in this mode of trial will be utterly subverted and destroyed, and injustice will likewise be promoted through the neglect, if not by the direct countenance and approval, of the courts themselves. That is only to be prevented by vindicating the right of the parties to an impartial and independent trial.” In Livermore v. Bainbridge. 14 Abb. Prac. (N. S.) 227, the report of the referee, “a gentleman of high standing and character,” was set aside because he had advised the party against whom he was about to decide to a compromise, and

this although his suggestion and its rejection by the unsuccessful party had no influence upon his mind; the court, per Davis, J., saying: “We think 'it improbable that the referee was affected by the mistake he made; but the interests of justice require that the general rules designed to prevent suspicion of impurity in its administration should be rigidly adhered to.” In Leonard v. Mulry, 93 N. Y. 392 , although there was “no evidence that, in reaching a conclusion in favor of the plaintiff, there was either interest or improper conduct on the part of the referee,” the court of appeals says: “Nor was it necessary to inquire whether the referee would be influenced by the new relation which he sustained to the cause. He might be affected by it unconsciously; and the rule of exclusion has regard, not so much to the motives which in any given case may be supposed to bias the judge as to the apprehensions or even the over-anxious suspicions of litigants, and the preservation of confidence in the administration of justice.” These authorities I adduce, not as adjudications upon the facts of this case, but as propounding the rule that should be observed in its determination.

What are the conceded facts of the case,—admitted, I mean, by the ref.eree? That, at a private interview which he solicited, he said ,to defendants’ counsel that he thought he would have to decide in defendants’ favor, and he was then writing an opinion in the case; that he suggested the subject of stenographer’s fees, and thereupon a dispute arose between the referee and the counsel as to which party should pay them, the referee contending that, by stipulation, the successful party should pay the whole fees, while defendants’ counsel insisted that he should pay only half; that the referee said the successful party would have to pay the referee’s fees and the stenographer’s, and that the stenographer looked to him (the referee) for payment of his fees; that defendants’ counsel stubbornly declined to pay more than half of the stenographer’s fees; that this stenographer had been substituted by the referee instead of one already engaged by the parties; that, m the end, the referee gave his report to the plaintiff, who paid him all the fees of the stenographer. Assuming, as. the referee alleges, that his change of opinion in the case was the effect of a subsequent brief from the plaintiff’s attorney, and no wise influenced by the refusal of defendants’ counsel to yield to his demand for payment of all the stenographer’s fees, is the principle enunciated by the authorities any the less applicable? Is not the administration of justice in the case exposed to grave and well-founded suspicion ? Is the defeated party without appearance of justification in the Delief he avows that he has not had a fair and impartial trial? Do not the Interests of justice entitle him to a hearing before a tribunal whose decision shall not be challenged by circumstances of such sinister import as infect the report of this referee? If the plaintiff has a valid cause, he can lose nothing by recourse to another court, of unquestioned and unquestionable impartiality. If the defendants’ case be infirm, the clearer the integrity of the judge who determines it the less reason to apprehend its prevalence. Independently, however, of the interest of parties, the public is profoundly concerned that the distribution of justice by its courts should be exempt even from the suspicion of illicit influence.

I am for reversing the order, and setting aside the report.