
    O’Brien v. Long.
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1888.)
    1. Appeal—Review—Discretion of Trial Court—Judgment—Opening—Conditions.
    On appeal to the general term, from an order of the special term, imposing conditions on setting aside a judgment for plaintiff, such order may be reviewed, although the conditions imposed rest in the discretion of the special term; and it is immaterial that defendant and appellant has accepted and acted upon the order.
    2. Judgment—Opening—Conditions—Reference—Misconduct of Referee.
    On appeal from that portion of an order imposing the condition that defendant shall pay costs on setting aside a judgment for plaintiff, where it appears that the judgment was set aside on the ground that the referee had, while the action was pending, acted as attorney for some one of the parties in other actions wherein plaintiff’s attorneys were referees, of which fact defendant had no notice, the order will be modified by striking out the condition; though there is no reason for supposing that the referee acted corruptly, and plaintiff himself was entirely ignorant of the circumstance.
    
      Appeal from special term, Monroe county.
    A judgment for plaintiff, Francis O’Brien, was set aside on the ground that the referee had, while the action was pending, acted as attorney for some one of the parties in action, wherein plaintiff’s attorneys were referees. The order setting aside the judgment imposed the condition that defendant, Daniel Long, pay plaintiff the costs, including the referee’s fees, which plaintiff had paid. From this portion of the order defendant appeals.
    Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.
    
      John Griffin, for appellant. George W. Oreutt, for respondent.
   Barker, P. J.

The respondent objects to any review being made by this court to the part of the order appealed from, for the reason that the conditions imposed by the special term were discretionary with it, and this court has no power to change or alter the conditions imposed. The right of this court to review orders made by the special term, in respect to matters resting in the discretion of the court, has been constantly exercised, and the power to do so has been affirmed and sanctioned by the court of appeals. People v. Railroad Co., 29 N. Y. 418; Livermore v. Bainbridge, 56 N. Y. 72; Code Civil Proc. § 1347. The terms imposed in granting relief to a party to the action to which he is entitled by law, and the practice of the court, involves a substantial right; and, if either party is dissatisfied with the terms imposed, he may appeal to this court from that portion of the order, and it is the duty of this court to determine for itself whether the portions of the order appealed from are fair and just, and according to law and to the rules of practice. The determination of this court on the question thus presented is the opinion and judgment of the court in which the action is pending. If the order appealed from had been made by another court, and the terms and conditions thereof rested wholly in the discretion of that court, the rule as stated by the respondent would be applicable; as it has been held by this court that the order made by the county court, resting in its discretion, cannot be modified or reversed on an appeal therefrom to this court. Such is the .rule adopted by the court of appeals from judgments and orders made by this court involving questions of procedure and practice which rest entirely within its discretion. The respondent makes the further objection that, as the appellant has accepted and acted upon the provisions of the order granting him relief, he cannot appeal from the portions of the order with which he is dissatisfied. The portions of a special-term order imposing terms as a condition to granting relief may be reviewed by this court, on appeal, when they are of such a character as to involve a substantial right of a party, or as being exceptional and unusual, and contrary to the common practice of the court. Bailey v. Park, 5 Hun, 41. The learned judge at special term, in imposing the conditions, adopted the rule which prevails when a verdict is set aside for misbehavior or mistake of the jury. When the verdict of a jury is interfered with, upon either of the grounds stated, it is the settled practice that a new trial can only be granted on condition that the party asking relief pay the costs. Id., and the case there cited. In practice, this rule is not strictly applied, when the error or mistake complained of has been committed by a judge. The trial before a referee is more analogous to atrial by the court without a jury than to a trial by jury. Wentworth v. Candee, 17 How. Pr. 405. The appellant made a clear case for relief. Carroll v. Lufkins, 29 Hun, 17. There is, however, no reason for supposing that the referee acted corruptly, influenced by the fact that actions in which he was attorney for one of the parties had been referred to the plaintiff’s attorneys after he had commenced the trial of this action. The plaintiff himself was wholly ignorant of the occurrence, and the report and judgment was not set aside for any wrong or misbehavior on his part; to which it appears that, while the trial of this action was pending, one of his attorneys consented to act as referee, and heard and determined the matter referred to him, wherein the referee in this case was counsel for one of the parties, and neither he or the referee notified the defendant’s attorney of the circumstance. Two other actions, in each of which the referee represented one of the parties, were also referred during the trial of this action to the other of the plaintiff’s attorneys. In neglecting to notify the defendant’s attorney that these references had been made to them we think the plaintiff’s attorneys were remiss in duty. Doubtless, thoughtlessly so; but for this reason we are inclined to modify the order by striking out from the same the words, “Upon payment by the defendant to the plaintiff of the costs of the trial before the referee, including his fees paid by the plaintiff.” And as modified, the same is affirmed, with the costs and disbursements of this appeal.  