
    William J. Reynolds, Respondent, v. Joseph Moore, Impleaded, Appellant.
    (New York Common Pleas
    General Term,
    December, 1895.)
    As to whether, a change of decision by a referee after an informal expression of opinion to counsel of one of the parties and a refusal by the latter to pay all of the stenographer’s fees is sufficient to require his report to be set aside, where the charges of undue influence and improper conduct are denied by him, qumre.
    
    
      Appeal from an order made ac Sjiecial Term denying a motion to sét aside the report of a referee for his misconduct.
    
      Alexander Thain,.iov appellant.
    
      James Kea/rney, for respondent.
   Bisohofjt,. <L

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. Pr. (N. S.) 313 ; Ayrault v. Sackett, 17 How. 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 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 ivhole 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 ten dollars, 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 pf corruption and malfeasance.” I do not understand that, by the law of New York, proof of a mercenary or improper motive in Bis decision is requisite to invalidate a referee’s'report.

In. Stebbins 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, that 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. Pr. 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. Pr. 1, speaking of private conversations of á 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. Saugerties, etc., Company, 12 How. 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 grounds 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 immate- ■ rial. He may be affected by it unconsciously^ and the rule suggested should prevail, if for no other reason than 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 in cases under consideration. Ex parte treaties and conversations ■ with either party as' to any fact, point-or fee ought to be pvoided.” .

In Burrows v. Dickinson, 35 Hun, 492, in setting aside the report of a referee, the court, at General Term said :■ Even tire 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,5 and Injustice will likewise be promoted through' the neglect if not by means of the direct countenance and' ajiproval 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. (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., sayiiig: “We think it improbable that the referee in this case was-affected by the mistake he made; but the interests of justice demand that the general rules designed to prevent the 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 thp referee would he influenced by the new relation which he sustained to the case. He might be affected by it unconsciously; and the rule of excln- ' sion has regard, not so much to the motives which in any given case maybe supposed to bias the judge,as to the apprehensions or even 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 referee? That, at a private interview which he solicited, he said to defendant’s counsel that he thought he would have decide in defendant’s 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 defendant-’s 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 defendant’s 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 nowise influenced by the refusal of defendant’s 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 belief he avows, that he has not had a fair and impartial trial ? D.o 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 defendant’s 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 prder and setting aside the report.

Beargnment ordered upon failure óf concurrence. Code Civ.'Proe. S 281. 1 ‘  