
    Clark v. Eldred.
    
      (Supreme Court, General Term, Third Department.
    
    September 21, 1889.)
    1. Appeal—Appealable Order—County Court.
    Under Code Civil Proc. IT. T. § 1343, amended by Laws 1881, c. 135, which provides for an appeal from an order made by the county court in an action taken to it by appeal; and section 1340, amended by Laws 1888, c. 507, which provides for an appeal from an order of the county court granting or refusing a new trial,—an appeal lies from an order of a county court granting a new trial in an action taken to it by appeal.
    3. Reference—Misconduct of Referee—New Trial.
    Where a new trial has been granted to plain tiff for misconduct of the referee, partly caused by defendant, on condition that plaintiff shall pay the costs of the reference if finally successful, the condition will be stricken out as unreasonable.
    Appeal from Bensselaer county court.
    Action by Anna M. Clark against Perry W. Eldred. Judgment was rendered for defendant, and new trial afterwards granted to plaintiff on certain conditions. From the part of the order imposing conditions plaintiff appeals.
    Argued before Learned, P. J., and Fish and Putnam, JJ.
    
      II. A. King, for appellant. D. M. Westfall, for respondent.
   Learned, P. J.

The opinion in Reilley v. Canal Co., 102 N. Y. 383,7 N. E. Rep. 427, 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 Proc. § 1340. This decision made it necessary for the legislature to express its meaning more clearly. And it did so by chapter 507, Laws 1888, amending section 1340, Code Civil Proc. Since that amendment, it would be difficult for the court of appeals to deny the right of appeal under that section. Agricultural Works v. Eggleston, 107 N. Y. 277, 14 N. E. Rep. 312. With this section, thus amended, and with section 1342, as amended in 1881, we think that the present appeal lies to this court. Cramer v. Lovejoy, 41 Hun, 581; Gray v. Fisk, 53 N. Y. 630.

We think, also, that there are cases where the terms imposed on granting relief maybe so contrary to those established by law and practice as to justify a review in this court. O’Brien v. Long, 1 N. Y. Supp. 695. 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 stenographer, when she was in no way blamable for the misconduct. The claim in suit is about $60. 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; for, 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. The part of the order appealed from is stricken out; the $10 costs of this appeal and printing disbursements, to abide the event of this action. 
      
      Laws N. Y. 1888, c. 507, amending Code Civil Proc. § 1340, provides that an appeal may be taken to the supreme court from an order of the county court granting or refusing a new trial.
     
      
      Laws N. Y. 1881, c. 135, amending Code Civil Proc. § 1342, provides that an appeal maybe taken from an order made by the county court “in an action brought in, or-taken by appeal to, the county court. ”
     