Reynolds v. Moore

Headnote

1. Referee—Misconduct—Settins aside report. Any indiscreet action of a referee, on which improper inferences can be drawn, suffices to set aside his report.

The facts, in this case, were held to establish that the referee’s action was not only indiscreet, hut improper, and to render it necessary to set aside his report.

Appeal from court of common pleas, special term.

Action by Wiliam 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 lieu, 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 June 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 re-argument was ordered. The re-argument 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.

On the healing 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,

. JL2 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 fadt 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 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 probf, should remain undisturbed.

Order affirmed, with $10 costs and printing disbursements.

PRYOR, J.—The learned judge at special term refused to set aside the report of the referee, for insufficient evidence of “ the charge of corruption and molfeasance.” I do 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 Stebbins v. Brown, 65 Barb. 272 , while a case was pending be

fore 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 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 pi an tiff’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 to place himself in a situation which may expose him to be influenced in his decision by conversations with persons, in the absence of the parties.” In Dorlon v. Lewis, 9 How. Prac. 1, speaking of private convesations of a referee with the attorney of a party, the court said: “A referee, under such circumstances, owesdt 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 Rooso v. Turnpike Road Co., 12 How. Prac. 297, “ although nothing in the case 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; the 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, 35 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 ib 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 to set aside b@=

cause 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 tjiat 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 pai't of the referee,” the court of appeals says:

“Nor was it necessary to inquire whether the referee would be influenced by the new relating 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 adminstration 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 referee? 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 one-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 bis 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 in 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 j ustification in the belief 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 thei 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 suspicion of illicit influence.

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