Leonard v. . Mulry

Danforth, J. At the time of the arrangement between the prevailing party and the referee, the duties of the latter had not ended nor were the rights of the litigants finally determined. The defeated party intended to appeal from the decision, and of this intention his adversary and the referee were both notified before the execution of the agreement between them. The possible success of that appeal was in their minds, and so the agreement establishes a lien in favor of the referee, not only upon the judgment to follow his report, but upon the cause of action itself, and provides for the payment of his fees “ out of the first moneys collected from defendants upon said judgment or any subsequent judgment that may be recovered ” in the action. Whether the appeal prevailed would *396 depend upon the bill of exceptions or case, and its disclosure of erroneous decisions made by the referee in rejecting or allowing evidence, or his omission to notice material testimony, or other fault during the conduct of the trial." A difference between the parties as to these matters was not only possible but certain; for the case made by the defendant was not satisfactory to the plaintiff, and upon amendments prepared by him, it stood for settlement. Whether under these circumstances the appellant should be required to submit to the further decision of the referee, or whether having, by his own act, incapacitated the referee from acting, the plaintiff should be permitted to have the case settled before a new referee, or otherwise, was for the Supreme Court to say. Clearly the referee had acquired an interest so direct that an unsuccessful appeal would result in his pecuniary gain ; and it is immaterial whether the functions of his office, in the settlement of the case or exceptions, are characterized as judicial or ministerial. In performing them he must act as referee, and for that he was disqualified. “ No man’’ says the common law, “ can be a judge in his own cause,” and by statute (Code, § 46), he “ cannot sit as such,” in a cause or matter in which he’ is interested. So far as there are limitations to this rule they are noted in the Matter of Ryers (72 N. Y. 7), but this case is not affected by them. ¡Nor was it necessary to inquire whether the referee would be influenced by the new relation which he sustained to the case. He might be affected by it unconsciously, and the rule of exclusion has regard, not so much to the motives which in any given case may be supposed .to bias the judge, as to the apprehensions or even the over-anxious suspicions of litigants and the preservation of confidence in the administration of justice. There is no evidence that in reaching, a conclusion in favor of the plaintiff, or in the preparation of his report, there was either interest or improper conduct on the part of the referee, and the learned counsel for the respondent, with some force, contends that the ends of justice would be attained and the object of the rule of disqualification satisfied by permitting *397 the plaintiff to withdraw his proposed amendments and allow the appeal to be heard upon the plaintiff’s case. An offer to that effect is how made by him, but it is not contained in the appeal papers and does not appear to have been presented to the court below. We cannot consider it. If or do we think that the plaintiff is entitled, as of course, to the benefit of the provision (§ 997 of the Code), which, in case of death or disability of a referee, permits the court to prescribe the manner of settling the case. The plaintiff elected to disqualify the referee before whom the trial was had and cannot avoid the consequences of that act to the prejudice or inconvenience of his adversary. From these considerations it follows that the order from which this appeal is taken rested in the discretion of the court below, in the exercise of its jurisdiction over the conduct of referees in the disposition of causes submitted to them, and against it, as is well settled, we hare no power. (Gray v. Fisk, 53 N. Y. 630; Livermore v. Bainbridge, 56 id. 72; Mundorff v. Mundorff, 59 id. 635.) The appeal should, therefore, be dismissed. All concur, except Andrews, J., absent. Appeal dismissed.