
    Francis O’Brien, Resp’t, v. Daniel Long, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    1. Appeal—Special term orders resting in discretion are reviewable BY GENERAL TERM.
    The general term of the supreme court may review orders made by the special term in respect to matters resting in the discretion of the latter.
    2. Same—When special term orders resting in discretion are reviewable.
    A special term order imposing terms as a condition to granting relief, may be reviewable on appeal to the general term when it is exceptional, and unusual and contrary to the common practice of the court.
    3. Attorney—Duty to apprise parties of peculiar relations to REFEREE.
    When a referee in an action was an attorney and counsel in three actions in which the plaintiff’s attorney was referee, Held, that the plaintiff’s attorneys should have notified the parties of their appointment, and that in not doing so, they were remiss in duty
    4. Referee—Report of—Ground for setting aside.
    
      Held, that a report in favor of the plaintiff should, on that ground, be set aside, and a new trial granted, although there was no reason to suppose that the referee was corruptly influenced thereby.
    Appeal from portions of an order, made at the Monroe special term, setting aside the referee’s report, and the judgment entered thereon, on the defendant’s motion.
    The judgment was in the plaintiff’s favor for damages,. $381 with costs, the referee’s fees being $150, which were paid by the plaintiff upon delivery of the report.
    The report and judgment were set aside, for the reason that the plaintiff’s attorneys • were severally appointed referees in three actions, in each of which the referee herein was attorney and counsel for one of the parties. The order setting aside the judgment was granted on condition that the defendant pay to the ..plaintiff the costs of the trial, including the referee’s fees. The portion of the order imposing terms is appealed from:
    
      John Griffin, for app’lt; George N. Orcutt, for resp’t.
   Barker, P. J.

The respondent objects to any review being made by this court to the part of the order appealed from, for the reason that the conditions imposed by the special term were discretionary with it, and this court has no power to change or alter the conditions imposed. The right of this court to review orders made by the special term, in respect to matters resting in the discretion of the court, has been constantly exercised, and the power to do so has been affirmed and sanctioned by the court of appeals. People v. N. Y. C. & H. R. R. R. Co., 29 N. Y., 418; Livermore v. Bainbridge, 56 N. Y., 72 ; Code Civ. Pro., § 1347.

The terms imposed on granting relief to a party, to which he is entitled by law and the practice of the court, involves, a substantial right, and if either party is dissatisfied with the terms imposed, he may appeal to this court from that part of the order ; and it is the duty of this court to determine for itself whether the portions of the order appealed from are fair and just, and according to law and to the rules of practice.

The determination by this court on the question thus presented by an appeal, is the opinion and judgment of the court in which the action is pending.

If the order appealed from had been made by another court, and the terms and conditions thereof rested wholly in the discretion of the court, the rule, as stated by the respondent, would be applicable, as it has been held by this court that an order made by the county court, in its discretion, cannot be modified or reversed on an appeal therefrom to this court.

Such is the rule adopted by the court of appeals from judgments and orders made by this court involving questions of procedure and practice, which rest entirely within its discretion. The defendant makes the further objection that as the plaintiff has accepted and acted upon the provisions of the order, granting him relief, he cannot appeal from the portions of the order with which he is dissatisfied. So much of a special term order, imposing terms as a condition to granting relief, may be reviewed by this court, on appeal, when they are of such a character as to involve a substantial right, or are exceptional and unusual and contrary to the common practice of the court. Bailey v. Park, 5 Hun, 41.

The learned judge at special term, in imposing the conditions, adopted the rule which prevails, when a verdict is set aside for misbehavior or mistake of the jury. When the verdict of a jury is interfered with, upon either of the grounds stated, it is the settled practice that a new trial can only be granted on condition that the party asking relief, pay the costs. Bailey v. Park, supra, and the case there cited.

In practice this rule is not strictly applied when the error or'mistake complained of has been committed by a judge. The trial before a referee is more analogus to a trial by the court without a jury than to a trial by jury. Wentworth v. Candee, 17 How., 405.

The appellant made a clear case for relief. Carroll v. Lufkins, 29 Hun, 17.

There is, however, no reason for supposing that the referee was corruptly influenced by the fact that actions, in which he was attorney for one of the parties, had been referred to the plaintiff’s attorney after he had commenced the trial of this action.

The plaintiff himself was wholly ignorant of the occurrence, and the report and judgment were not set aside for any wrong or misbehavior on his «part. It appears, however, that while the trial of this action was pending, one of his attorneys consented to act as referee, and heard and determined the matter referred to him, wherein the referee in this case was counsel for one of the parties, and neither he or the referee notified the defendant’s attorney of the circumstance.

Two other actions, in each of which, the referee represented one of the parties, were also referred during the trial of this action to the other of the plaintiff’s attorneys. In neglecting to notify the defendant’s attorney, that these references had been made to them, we think the plaintiff’s attorneys were remiss in duty. Doubtless, thoughtlessly so, but for this reason, we are inclined to modify the order by striking out from the same, the words “uponpayment by the defendant to the plaintiff, of the costs of the trial before the referee, including his fees paid by the plaintiff, ” and as modified, the same is affirmed without costs of this appeal to either party.

Haight, Bradley and Dwight, JJ., concur.  