
    Anna M. Clark, App’lt, v. Perry W. Eldred, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 21, 1889.)
    
    1. Appeal — Libs to general teem from order of county court granting NEW TRIAL.
    An appeal will lie to the general term of the supreme court from an order of a county court setting aside a judgment and granting a new trial in an action commenced in a justices court.
    2. New trial — Terms upon granting.
    A new trial was granted on the ground of irregularity of the referee in drinking with the defendant pending the trial, and in altering his report after delivery. The order imposed as terms the payment by the plaintiff, if successful, of the sums paid by the defendant for referee’s and stenographer’s fees on the first trial. Held, error.
    Appeal from an order of Bensselaer county court, setting aside a referee’s report, vacating the reference, and granting a new trial, on condition that if the plaintiff recover judgment, the defendant shall be credited thereon the amount paid by him for referee’s and stenographer’s fees upon the first trial.
    Action for board and horse keeping for defendant and his employees, brought in justice’s court. Plaintiff obtained judgment by default, and defendant appealed to the county court for a new trial. The further facts appear fully in the opinion.
    
      H. A. King, for app’l; D. M. Westfall, for resp’t.
   Learned, P. J.

The opinion in Reilley v. Delaware and Hudson Canal Company, 102 N. Y., 383; 2 N. Y. State Rep., 419, gives two reasons for its conclusion; one that no order "had been entered in the county court. If no order had been in fact entered, then of course there was no occasion justifying a decision that such order could not be reviewed. The other reason was that an order granting or refusing a new trial was not an order affecting a substantial right. See Code Civil Procedure, § 1340.

This decision made it necessary for the legislature to express its meaning more clearly. And it did so by chapter 507, Laws of 1888, amending § 1340, Code Civil Procedure. Since that amendment it would be difficult for the court of appeals to deny the right of appeal under that section. Ithaca Agl. Works v. Eggleston, 107 N. Y., 272; 12 N. Y. State Rep., 250.

With this section thus amended, and with § 1342 as amended in 1881, we think that the present appeal lies to this court. Cramer v. Lovejoy, 41 Hun, 581; 5 N. Y. State Rep., 190; Gray v. Fisk, 53 N. Y., 630.

We think also that there are cases where the terms imposed on granting relief may be so contrary to those established by law and practice as to justify a review in this court. O'Brien v. Long, 49 Hun, 81; 17 N. Y. State Rep., 510.

' The order of the county court granted a new trial on the ground of misconduct of the referee. He had reported in favor of the defendant for costs. The court imposed, as terms, that if the plaintiff should be successful on the merits upon a new trial she should ■credit the defendant on the judgment and execution with the sum paid by him for referee’s fees and stenographer’s fees on the first trial.

There are two constructions which may be given to this order. One is that the plaintiff, if successful, would, on final judgment, include in her costs the referee’s fees and stenographer’s fees on the former trial, and, therefore, that the defendant should not pay these twice. The other is that the plaintiff would not include these sums in her costs and that the defendant would offset what he had paid for the referee and the stenographer. The latter is the construction put on the order by the plaintiff and on that construction she insists that the order is unjust in its terms.

The alleged improper conduct of the referee consists in drinking liquor with the defendant at his expense in saloons while the reference was pending and in altering his report after it had been delivered to the defendant’s attorney. Enough appears in the affidavits to fully justify the setting aside of the report. And it will be seen that the grounds on which it was set aside are, to some extent at least, chargeable against the defendant. It seems, therefore, rather strange that the terms imposed on setting the report aside should be beneficial to the defendant, on whom some of the blame must rest for this miscarriage of justice.

Justice plainly would require that the referee should refund .what he has received for fees. But perhaps this cannot be brought about. But should the plaintiff finally recover in the action, then it will have been determined that she had a just claim, and that the defendant was wrong in neglecting,to pay it. It would then seem unreasonable to make the plaintiff, in that case, pay the fees of the first referee and of the stenograper, when she was in no way blamable for the misconduct.

The claim in suit is about sixty dollars. The defendant’s costs are over $374, of which the referee’s fees are $125 and the stenographer’s $83.50. To require the plaintiff, if successful, to pay these sums is practically to deny her justice. She is entitled to a fair trial. It is decided that she has not had that, owing to the fault of the referee, and perhaps of the defendant.

If the referee alone were culpable, it might then be the just disposition to make these fees of the referee a part of the final costs, so that they would fall on the unsuccessful party. But the order appealed from' casts these fees on the finally successful party. Eor if the plaintiff is unsuccessful in the end, then we suppose the defendant will tax these fees in his final bill. And if the plaintiff is successful, she is required by this order to pay these fees.

On' the whole, it seems to us that the best disposition is to strike out that part of the order which is appealed from.

That part of the order appealed from is stricken out The ten dollars costs of this appeal and printing disbursements to abide the event of this action.

Putnam and Fish, JJ., concur.  