
    William J. Reynolds, Respondent, v. Joseph Moore, Appellant, Impleaded with The Mayor, Aldermen and Commonalty of the City of New York and The Mount Morris Bank.
    Referee— report set aside for any indiscreet action — conversing with the counsel for one party in the absence of the other counsel — sudden change of opinion following a dispute.
    
    Any indiscreet action of a referee from which improper inferences can be drawn suffices to justify the court in setting aside his report, and it is not necessary to prove that the referee was guilty of actual corruption.
    It is improper for a referee to converse upon the merits of the case with the counsel for the defendant in the absence of the counsel for the other party, nor should he make to him such statements as that he thought he would have to decide in favor of the defendant upon a point of law, and that the plaintiff's testimony was given in an unsatisfactory manner and needed corroboration.
    The court may consider, upon an application made to set aside the report of a referee, the fact that the referee had, in the first instance, intimated that his decision would be for the defendant, but that after a dispute had occurred between him and the defendant’s attorney in regard to the fees of a stenographer, selected by the referee, the latter apparently changed his opinion and reported in favor of the plaintiff, who paid in full the stenographer’s bill, of which the defendant’s attorney was willing to pay but one-half.
    Appeal by tlie defendant, Joseph Moore, from an order of the Special Term of the Court of Common Bleas for the city and county of New York, entered in the office of the clerk of said court on the Sd day of June, 1895, denying the defendant’s motion to set aside, for misconduct, the report of a referee.
    
      Alexander Thaw, and T. M. Tyng, for the appellant.
    
      James Kearney, for the respondent.
   Barrett, J.:

The discussion at Special Term was solely upon the question whether the referee had been proved guilty of corruption “ by very clear and convincing proof.” The learned judge examined the. facts carefully, and came to the just conclusion that the case on that head liad not been made out. The error consisted in limiting-the consideration of the facts to this charge. The real question here was not whether the referee was guilty of actual corruption, but whether the fairness of his decision was justly questioned. It. is the settled law of this State that any indiscreet action of a referee, from which improper inferences can be drawn, suffices to set aside-his report. (Yale v. Gwinits, 4 How. Pr. 253 ; Dorlon v. Lewis, 9 id. 4; Roosa v. Turnpike Co., 12 id. 297; Greenwood v. Marvin, 29 Hun, 99; Carroll v. Lufkins, Id. 17; Burrows v. Dickinson, 35 id. 492; Livermore v. Bainbridge, 14 Abb. [N. S.] 227; Leonard v. Mulry, 93 N. Y. 392.) Our courts have invariably taken an elevated view of this question. Thus, in Roosa v. The Turnpike Co. (supra), Harris, J., concluded his opinion with this-remark: “All agree that the administration of the law must be pure and impartial. But it is scarcely less important that the conduct of those to whom its administration is entrusted should be such as to-furnish to those who litigate no just grounds of suspicion.”

In Livermore v. Bainbridge, Justice Fancher quotes, with approval, an observation which was made in Dorlon v. Lewis (supra),, as follows: “A referee owes it to himself not only to avoid all improper influences, but even the appearance of evil.” In the same-case, upon appeal, Davis, J., said: “ The interests of justice demand that the general rules designed to prevent the suspicion of impurity in its administration should be rigidly adhered to.”

In many of the cases the integrity of the referee was unquestioned, while in one, at least, his high character was adverted to.

In the present case the conduct of the referee was not only indiscreet, but improper. Upon, his own statement he conversed with the defendant’s counsel upon the merits of the case in the absence of the plaintiff’s counsel. This of itself was an impropriety. What he said, however, was grossly improper, namely, that he “ thought that he would have to decide in defendant’s favor on the law point; ” that “ he was writing an opinion on the case,” and that the plaintiff’s testimony was given in an unsatisfactory manner, and needed corroboration.” This is the referee’s own account of his language, while the attorney’s version of what transpired characterizes the language used as much more decided and emphatic. The attorney’s version need not, however, be scrutinized, as, upon the referee’s own showing, his conduct was inexcusable.

At this very interview, too, there was a difference between the referee and the defendant’s attorney with regard to the stenographer’s fees. This was significant in view of the referee’s statement that the stenographer looked to him for payment of the bill. It was also significant in view of the fact that this stenographer was. selected by the referee after a stenographer, previously agreed upon by the parties, had been discharged by him. The referee says, to use his own language, that he “ disputed ” this attorney’s “ evidently forced, unjustifiable construction ” of a stipulation which had previously been entered into with regard to stenographer’s fees. The attorney says that he objected to the bill as excessive, and that he also claimed that his client was bound to pay but one-half of these fees. The referee insisted that the defendant was liable for the whole bill. The attorney finally offered to tax the stenographer's bill and then to pay the defendant’s share of it. Subsequently the stenographer called upon the attorney, but the latter adhered to his position, namely, that he would only pay one-lialf of a proper bill. There this matter rested until not quite a month later, when the referee reported against the defendant, and then it was learned that the plaintiff had paid in full the stenographer’s bill, to which the defendant’s attorney had so persistently objected. I say in full, but to be precise the bill was $326.54, and the payment $325.

It was entirely natural, under these circumstances, that even a. professional mind should view the referee’s change of opinion with suspicion. But° what must the client have believed ? And what, indeed, was he quite justified in believing? Surely, that the referee, was with him ” at the time of the interview with his attorney, and that the opinion which the referee then said he was writing was. unquestionably in his favor. What must he have thought when he subsequently learned that the referee had completely changed his mind after the dispute regarding the stenographer’s fees? When he learned, too, that the plaintiff had not been as injudicious as he„ and had paid the whole bill without question ?

He was certainly justified in the belief that there was some sinister connection between his counsel’s persistent attitude with regard to the stenographer’s fees and the referee’s extraordinary change of opinion.

Our conclusion is that the referee’s action was not only indiscreet, hut improper, and that his report cannot be permitted to stand. Few laymen could be brought to believe, upon such a state of facts, that they had had a fair trial; and the administration of justice would fall into disrepute were the court to sanction indiscretions and improprieties tending to weaken the faith of the lay mind in its purity.

The order appealed from should be reversed, with costs, the motion to set aside the report granted, and the order of reference vacated.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Order reversed, with costs, motion to set aside report granted, and order of reference vacated.  