Summary
In Topia Mining Co. v. Warfield (145 App. Div. 422) the late Mr. Justice SCOTT, writing for this court, said (at p. 423): "The court below was quite justified in removing the referee, and in view of the precedents in this court, could scarcely have done otherwise.
Summary of this case from Matter of FriedmanOpinion
June 9, 1911.
Julius M. Mayer, for the plaintiff.
George Gordon Battle, for the defendant.
Morgan J. O'Brien and George Edwin Joseph, for the referee.
The court below was quite justified in removing the referee, and in view of the precedents in this court, could scarcely have done otherwise. ( Smith v. Dunn, 94 App. Div. 429; Fortunato v. Mayor, etc., 31 id. 271.) We do not attribute to the referee any improper motive in asking each party to the litigation before him to advance a sum on account of his fees. It was doubtless only injudicious, but it was none the less improper. Nor do we believe that the refusal or inability of one of the parties to make the proposed advance would, in fact, have prejudiced the referee against him. But the party so refusing might not be so certain, especially if the decision finally went against him. A referee stands in the place of the court, and it is as essential that litigants before him should be assured of his absolute impartiality as it is that litigants before the court should feel an assurance of its impartiality. What was said in Smith v. Dunn ( supra) may be repeated here: "To justify the granting of this application it is not necessary that we should find that the referee was prejudiced or that any act of his showed prejudice against these defendants. But when he asked these parties to consent that his compensation be in excess of that allowed by law [to pay in advance a portion of a fee as yet unearned] he placed himself in a position which allowed a party refusing that consent to feel that, as he had stood in the way of the referee receiving a pecuniary advantage, the fact of the refusal would influence the referee in his action during the litigation." The plaintiff's attorney is not wholly free from responsibility for the condition which has been created, although we have no intention of attributing any improper motive to him. It would have been better, however, when he received what is certainly an unusual request, to have conferred with the defendant's attorney, instead of immediately paying the referee the sum demanded. If he had so conferred, the parties could and should have agreed either that both would pay, or that neither should. We are also of the opinion that the court was right in imposing as a condition of granting the motion for the removal of the referee that the testimony taken before the removed referee of witnesses now beyond the jurisdiction of the court might be read or given in evidence before the substituted referee, subject to legal objection as to competency or relevancy. It would be a great hardship to the plaintiff to require all this evidence to be taken over again, and there seems to be no necessity for doing so. It is suggested that the new referee should have the parties before him, but that result would not be assured by striking out that portion of the order permitting this evidence to be read, because as they are without the jurisdiction of the court their evidence might be taken on commission. The order denying defendant's motion to resettle the order of removal was within the discretion of the justice, and the appeal from it presents no question requiring consideration.
The orders appealed from are affirmed, with ten dollars costs and disbursements against the defendants on each appeal, and without costs against the referee.
INGRAHAM, P.J., LAUGHLIN, CLARKE and MILLER, JJ., concurred.
Orders affirmed with ten dollars costs and disbursements against the defendant appellant, and without costs against the referee.