
    Robert C. McCormick, Respondent, v. Joseph Walker, Jr., and Mary R. Washburn, as Executors and Trustees under the Last Will and Testament of Emma Jane Richardson, Deceased, Appellants.
    First Department,
    July 8, 1913.
    Reference — disqualification of referee — appeal — settlement of case.
    Proceedings before a referee who is disqualified from acting by reason of his interest in the case are void. Where a referee appointed to hear and determine the issues having made his report in favor of plaintiff and so' notified him accepts from plaintiff an assignment of the judgment to be entered as security for a part of his fees which plaintiff was unable to pay in full, the referee is thereby disqualified from passing upon defendant’s requests to find, subsequently submitted.
    Under the circumstances a motion by defendant to vacate the judgment entered on the referee’s report and to set aside the report should be granted, although not made until an appeal had been taken and plaintiff had moved to dismiss the same for failure to proceed.
    
      It seems, that section 997 of the Code of, Civil Procedure, giving the court the right to settle a case on appeal in the event of the disqualification of the referee, has no application under the circumstances.
    Appeal by the defendants, Joseph Walker, Jr., and another, as executors and trustees, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9 th day of May, 1913, denying plaintiff’s motion to dismiss defendants’ appeal from a judgment, and denying defendants’ motion to vacate the judgment and set aside the report of the referee, and declaring the case on appeal settled, and ordering it on file.
    
      Jacob Halstead, for the appellants.
    
      James S. Lehmaier, for the respondent.
   McLaughlin, J.:

Action to recover for legal services. The issues were referred to a referee to hear and determine. He made a report in favor of the plaintiff, and judgment was entered thereon, from which defendants appealed. Sometime after the proposed case on appeal and proposed amendments thereto had been served, nothing further having been done, the plaintiff moved to dismiss the appeal on the ground that it had been abandoned. The defendants then made a motion to vacate the judgment and set aside the report on the ground that the referee had become disqualified to act further by reason of having taken an assignment of an interest in the judgment, or in the alternative for an order directing that the defendants’ requests to find be passed upon, and the case and amendments settled by a justice of the Supreme Court or a referee appointed for that purpose. The motions were heard together, and resulted in an order denying the plaintiff’s motion and reciting that the case on appeal had become settled and the' amendments allowed through the defendants’ failure to notice them for settlement and denying defendants’ motion and ordering the case on file. From this order, or so much of it as denies the defendants’ motion and orders the case filed, the defendants appeal.

The trial was a long and expensive one. The testimony taken was very voluminous — the fees of the referee and stenographer amounting to more than $8,000. The referee made a report on “ the 8th of November, 1911, in favor of the plaintiff for $11,144. Judgment was entered thereon the same day for $19,464.50, which included the fees of the referee and stenographer. Shortly prior to the time the referee made his report he notified the plaintiff’s attorney that it was ready and he thereupon called upon the referee and stated that the plaintiff would be unable to pay his fees in full upon taking up the report, but would pay $2,500, and give an assignment of the judgment to be entered for the balance. This arrangement was finally agreed upon between him and the referee, apparently in the expectation that the judgment would be promptly paid. On November 9, 1911, the day after the judgment was entered, plaintiff executed an assignment thereof to the referee to the extent of $2,233.50. Before the report was made, at the suggestion of the referee, the -parties entered into a stipulation that requests to find might be submitted at any time within thirty days after the report was filed. Acting under the stipulation, after the report had been filed, and after the judgment had been assigned to plaintiff, defendant’s attorney submitted requests to find, and they were passed upon by the referee. Sometime thereafter the assignment of the judgment was filed in the county clerk’s office and a copy served upon the defendants’ attorney. Notwithstanding this fact, however, the defendants prepared and served their proposed case on appeal and accepted plaintiff’s proposed amendments. No further action was taken until the motions decided by the order appealed .from were made.

The appellants now contend that the referee became disqualified as soon as the interest.in the judgment was assigned to him, so that he could not legally pass upon their requests to find or settle the proposed amendments and case on appeal.

That the assignment did, in fact, disqualify the referee cannot well be disputed. (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 15, re-enacting Code Civ. Proc. § 46; Leonard v. Mulry, 93 N. Y. 392; 23 Cyc. 575.) In the Leonard case, where a referee had taken an assignment of a judgment under circumstances quite similar to the present one, the Court of Appeals held that he thereby became disqualified from settling the case and amendments, saying: Clearly the referee had. acquired an interest so direct that an unsuccess- 0 ful appeal would result in his pecuniary gain; and it is immaterial whether the functions of his office in the settlement of the case or exceptions are characterized as judicial or ministerial. In performing them he must act as referee, and for that he was disqualified.”

But the respondent suggests that the defendants having failed to notice the amendments for settlement, the case thereupon became settled automatically under rules 33 and 34 of the General Buies of Practice, and in any event the court should order the case settled under section 997 of the Code of Civil Procedure. I am unable to see any force in this suggestion. The referee was disqualified and, that being so, the proposed amendments could not properly have been noticed for settlement before him, for which reason the defendants’ failure to notice them did not have the effect of settling the case. The disqualification of the referee resulted from the act of the plaintiff and, as intimated in Leonard v. Mulry (supra), section 997 of the Code of Civil Procedure does not apply.

But even if the court might order the case settled in some other way under that section, I am of the opinion the power should not be exercised in the present case. By the stipulation of the parties, at the suggestion of the referee, the time for submitting requests to find was postponed until after the report had been made. Under these circumstances, while this • practice is not authorized by the Code, the defendants are entitled to have their requests passed upon, and the importance of this right on the appeal taken by the defendants is obvious. Although the testimony taken covers over 3,400 typewritten pages, the report of the referee contains only four findings of fact and one conclusion óf law. The requests presented to the referee by the defendants’ counsel contain one hundred and twenty-three proposed findings of fact and while many of them may be immaterial, nevertheless the defendants’ rights on the appeal might be seriously prejudiced if they could not rely upon such facts as might be found in their favor. As was said in Bremer v. Manhattan R. Co. (191 N. Y. 333): “A trial court, in making its decision, finds such facts as it deems material to the proper disposition of the issues to be determined and on those facts bases its conclusions of law. These are the only facts required to'be found in the decision. But the court may err in its judgment that the other facts proved in the case are immaterial and to afford the defeated party an opportunity to correct such an error, the privilege is given to present requests to find.” The findings of the referee were very properly confined to the few facts necessary to support his conclusion of law that the plaintiff was entitled to recover, but in ■ view of the amount of testimony taken it can hardly be doubted that there were specific facts established which the defendants were entitled to have presented on their appeal, and which would appear in the findings made at defendants’ request.

While the referee assumed to pass upon the requests submitted, he was, in fact, at that time disqualified from doing so. It seems to me to be weE settled that proceedings before a judge who is, by statute, disqualified from acting are void and of no effect. (People v. Connor, 142 N. Y. 130; Oakley v. Aspinwall, 3 id. 547.) It follows, therefore, that the defendants’ requests to find have never been legally passed upon, and, so far as I am able to discover, there is no way in which they now can be, since the judge before whom the case was tried is disqualified. The court, in the absence of a stipulation of the parties, could not make findings of fact any more than could another referee. The result is that if the defendants are now obliged to proceed with their appeal the only findings which will be before the court when the appeal is heard will be the four findings contained in the referee’s report. The defendants will be deprived of the advantage of any findings which might have been made in their favor and also of their right to except to the refusal to find to the requests not found. These are not technical, but substantial rights to which the appellants are, by statute, entitled, and the court itself neither can nor should deprive them of their right to be heard on the appeal. While the course pursued by the appellants is open to criticism, by reason of their delay in moving, that is quite insufficient to take from them the right to have their appeal heard in the manner provided by the statute. As was said in Oakley v. Aspinwall (supra): “The unfavorable aspect of the motion in this point of view must not cause us to overlook the principles upon which it is founded, which are of too great importance in the administration of justice ever to be lost sight of. ” In that case the Court of Appeals held that a decision in which a disqualified judge had participated should not be allowed to stand, although the judge in question had acted at the request of the moving party.

After a careful consideration of the question presented on the appeal I am forced to the conclusion that the defendants’ motion to vacate the judgment and set aside the report should have been granted; otherwise they must either abandon their appeal or be heard upon a record which may do them manifest injustice. The result is unfortunate, for it is not charged that the assignment of thé judgment had, or would have, the slightest effect upon the referee. It is perfectly plain that the assignment was made and accepted in the utmost good faith, as a means of satisfying the referee’s fees which the plaintiff was unable to pay at the time. But the State is bound to furnish to every litigant not only an impartial judge, but one who has not, by any act of his, justified a doubt of his impartiality. (Smith v. Dunn, 94 App. Div. 429.) The hardship falls upon the party who, however innocently, brought about the situation. The plaintiff, by his own act, elected to disqualify the referee and he cannot now be permitted to avoid the consequences of that act to the prejudice of his adversary.

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and defendants’ motion to vacate the judgment and set aside the report granted, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  