
    LIVERMORE against BAINBRIDGE.
    
      Court of Appeals,
    1874.
    Appealable Order.—Discretion.
    The general term may review, by appeal, an order of the special term, made on a summary application, in an action, after judgment and affecting a substantial right, although upon a question of discretion.
    But an appeal to the Court of Appeals does not lie from the general term in such a case.
    Setting aside a report, for misconduct of a referee, is an exercise of discretion, within this rule.
    The case of Howell v. Mills, 53 N. Y., 322,—distinguished.
    This was an appeal from an order vacating judgment on a referee’s report, and setting the report aside.
    The facts are fully stated in our report of the order from which the appeal was taken, in 14 Abb. Pr., N. S., 227.
   Andrews, J.

In the case of Gray v. Fiske, recently decided in this court, 53 N. Y., 630, in which an appeal was taken from the order of the general term of the superior court, affirming an order of the special term, denying a motion to set aside a judgment entered on the report of a referee upon allegations of misconduct on his part, the appeal was dismissed on the ground that the motion was one addressed to the discretion of the judge at special term, and that no appeal in such a case lies to this court from the order of the general term, reviewing the exercise of that discretion.

The right of the general term to review an order of a special term made upon a summary application in an action after judgment, when it affects a substantial right, is given by section 349 of the code ; and the jurisdiction of the general term under this section, to review orders made by the special term in respect to matters resting in the discretion of the court which involve substantial rights and interests, has been constantly exercised, and has been sanctioned and approved by this court (People v. N. Y. Central R. R. Co., 29 N. Y., 418). This jurisdiction is convenient, and is indeed essential to the proper administration of justice. The orders which come under the designation of discretionary orders frequently involve important rights, and the order in this case is one of that character. The effect of the order is to deprive the defendant of a judgment in his favor, obtained after a trial before the referee upon controverted questions of fact, and he is remitted to a new trial, with the hazard of a less favorable result. It would be unsafe and dangerous to conclude litigants in such a case, by the order of the special term, without the power to apply to an appellate tribunal to correct any error or inadvertence into which the judge at special term may have fallen in the exercise of the discretion.

But this court has steadily disclaimed the right to review, by appeal, an order of a special term, in matters resting in discretion. The rights of parties in orders of that character are not defined and established by fixed legal principles, nor by settled rules of equity. Each case must depend in a great measure upon its own peculiar circumstances, and this court declines to entertain jurisdiction to review discretionary orders, as inconsistent with the constitution of the court and its character as a tribunal in which questions of law only are to be considered, save in the excepted cases within which orders of this kind are not embraced (Howell v. Mills 53 N. Y., 322). In the last named case this court entertained an appeal for an order of the general term, affirming an order of the special term, denying a resale in a partition case, on the application of an infant who had been defrauded of his interest in the premises to which the- proceedings related, by a collusive arrangement between the other parties at the sale. The application to the special term was not in a just or proper sense addressed to the discretion of the court. The infant, upon the facts shown, was entitled by well settled rules of law to the relief asked, and upon this ground the court reversed the order appealed from. This decision does not disturb the general rule that an appeal does not lie to this court from discretionary orders. The appeal here is from the order of the general term, affirming, an order of the special term, setting aside the judgment entered on the report of a referee for his alleged misconduct, and granting a new trial.

We are of opinion that Gray v. Fiske is a decisive authority against the right of the appellant to maintain this appeal. The supervisory power of the supreme court over the conduct of referees, and its jurisdiction to set aside judgments for misconduct on their part during progress of the cause, was distinctly asserted in that case, and the court declared that the same rules should be applied as were adopted by courts in applications to set aside a verdict for the misconduct of jurors. This view has been taken by the supreme court in several cases (4 How. Pr., 253; 9 Id., 1, 7; 12 Id., 297). It is strenuously insisted by the counsel for the appellant, that no misconduct on the part of the referee was disclosed in the motion papers on which the order of the special term was granted, and we have not been able to discover anything in his conduct inconsistent with fairness or integrity, qr which under the circumstances calls for criticism. Both the special and general terms exonerate the referee from any imputation of improper motives, in endeavoring, as he did, to bring about a settlement, and suggesting, as reasons for it, the same considerations which had been openly and freely spoken of between the parties or their attorneys, in the presence of the referee; and the order was granted by the special term, and affirmed by the general term, upon the ground that the referee may, though unconsciously, have been influenced in his subsequent actions by the fact that his suggestions as to the settlement had been disregarded by the plaintiffs.

It does not aid the appellant to show that the order was not justified by the facts upon which it was based, or that the discretion of the court, below in the particular case, was improvidently exercised. It is not sufficient to show that injustice has been done, but it must appear that it was done under circumstances which authorize this court to interfere.

The affidavits brought to the attention of the court a circumstance upon which the claim of misconduct was made. The judge at special term was called upon to decide in respect to it. From the nature of the case, what-is misconduct on the part of the jury or referee, and what facts establish it, are inquiries which can not ordinarily be determined by the application of exact rules of law, and the decision must be left mainly to the good sense and sound judgment of the judge, before whom the inquiry is originally prosecuted. Different minds may reach different conclusions upon the same facts, and it is not to be supposed that a judge under the guise of discretion will seek to do injustice.

If the judge in. the first instance decides wrongly, the general term can correct him. But there the right of review ends. This court possesses prescribed and limited powers, and its jurisdiction does not extend to review orders resting in discretion. The appeal should be dismissed.

All the judges concurred.

Appeal dismissed with costs.  