
    Emily Cronon, Plaintiff, v. Charles A. Avery et al., Defendants.
    (Supreme Court, Onondaga Special Term,
    November, 1903.)
    Referee — Report set aside where there is even an appearance of relations which might have biased his judgment, even unconsciously — Public policy — Costs.
    After an attorney for a defendant in this action had appeared before a referee appointed therein the firm of the latter, three years later but before he had reported, consented that the same attorney be appointed referee on a certiorari in which the referee and his firm were interested. The report in the action was made before that on the certiorari.
    Held, that, although no charges were made against the referee in the action, public policy required that his report therein, in favor of the defendants, be set aside and this without costs.
    Motion to vacate and set aside the report of the referee herein, and the judgment entered upon the said report.
    A. B. Eider and Louis L. Waters, for motion.
    A. D. Merry and Wm. Gr. Tracy, opposed.
   Andrews, J.

On April 3,1897, by an order of this court, a referee was appointed to hear, try and determine the issues in the above action. Hearings were thereafter had and the evidence was substantially closed on December 9, 1897. The defendants were represented by several attorneys and among them Mr. A. D. Merry; the latter, however, taking but a small share in the actual trial of the case. Early in 1898 the referee became ill and was unable to continue the reference for something over three years. Having regained his health the case was finally submitted to Mm on January 9, 1901, and on March 19, 1901, he made a report in favor of the defendants.

In September, 1900, a proceeding was begun by the firm of which the referee was a member to review, by certiorari, an assessment ¡made by the assessors of the city of Oswego upon the property of the Oswego Traction Company. Of this company he was also president. Upon the twenty-second, upon the consent of the attorneys, Mr. A. D. Merry was appointed a referee to take the evidence in the matter and to report the same to the court with his conclusions. Mr. Merry had no-information of his appointment as such referee until the report had been made in the present case, and no hearings were had until after that time. The matter was not seriously contested on behalf of the assessors and finally Ms report was-made on or about June 26, 1901.

Under these circumstances and based upon these facts the present motion is made#

Mo complaint can be made by the plaintiff of the action of Mr. Merry. He certainly could have given no information to Mrs. Oronon of facts not within Ms knowledge.

Mor is there the slightest evidence of any partiality or want of fairness on the part of the referee herein. He is a man of the highest ability, character and integrity. Probably, at the time of Mr. Merry’s appointment, he had no recollection of the Oronon ease, or of the fact that he was referee in an action in which Mr. Merry had appeared. He says it never occurred to him that there was any inconsistency or impropriety in Ms acts. Doubtless he was entirely uninfluenced by the. fact that Mr. Merry appeared as referee in a case in which he was interested. Very probably the decision which he reached was correct.

Yet all this is beside the question. It is not whether the referee has in fact been improperly influenced. It is not even whether a man of character and standing would be likely to be influenced. But it is whether, from the relationship of the parties or the acts of the referee, the fairness of his decision can be justly questioned. Public policy requires on the part of referees the avoidance of even the appearance of such relations as might bias the judgment consciously or unconsciously or swerve in the slightest degree their action.

It has been held in this State that attorneys in different actions may not decide, as referee, the cause of the client of the other. Where this is done, and upon these facts alone appearing, upon the application of the opposing parly in either action, the court should vacate the reference and set aside the report if one has been made. The rule is a salutary one and should be strictly enforced so as to avoid even the appearance of evil in the administration of the law. So far as this particular case is concerned it may well be that justice would be served by a denial of the motion. But the result of such a precedent would be pernicious. For this reason and for this alone I shall grant the application.

It is true that in the case at bar the second reference was one not to hear and determine but to take the evidence and report with an opinion. I regard this difference, however, as immaterial, for upon such a reference favorable rulings upon the evidence and a favorable opinion are matters of importance.

There is nothing in this case to show a waiver on the part of the plaintiff of her right to make this application, or such laches as would bar her claim.

Mor is there any reason why her application should be granted only upon terms. The case is analogous to one where a verdict is set aside not for a mistake on the part of the jury but because of an error committed by the judge. Carroll v. Lufkins, 29 Hun, 17; O’Brien v. Long, 49 id. 80; Leonard v. Mulry, 93 N. Y. 392; Burrows v. Dickinson, 35 Hun, 492; Reynolds v. Moore, 1 App. Div. 105; Fortunato v. Mayor, 31 id. 271; Stebbins v. Brown, 65 Barb. 272; Dickinson v. Earle, 35 Misc. Rep. 235.

Ordered accordingly.  