Billings v. Vanderbrek

15 How. Pr. 295 | N.Y. Sup. Ct. | 1857

By the court—E. Darwin Smith, Justice.

This action was not referable under the statute, without the written consent ot the parties. The' affidavits show that it was referred upon such consent, and to a referee namdd by the plaintiff’s attorney. In such a case, where the parties have practically selected their own tribunal, if the court has the power, I think it ought not to exercise it, of substituting a new referee without the same consent of the parties. But aside from this consideration, I do not think there is anything in this case to warrant any change of the referee by the court. By reference to the case reported in 23 Barb. 546, it does not appear that there was any particular dispute before the referee on the facts, and if it were otherwise, the finding on the facts by the referee, seems to have been in favor of the plaintiff, and according to the allegations of his complaint. The referee found against the plaintiff upon the law. And the court has granted a new trial on the ground that the referee erred in matters of law.

The referee on the re-trial, has merely to conform to the law of the case as declared by the court; and if the facts are changed, I do not see that he has formed any opinion that will interfere at all with his fair and impartial finding thereon as res nova. If the decision of the referee had been reversed upon the facts— if the new trial had been granted because his finding was against the weight of the evidence, and a re-trial would call upon him to pass again upon the same evidence and upon the same question or points—I should think proper to send the case to a new referee, and so far I concur in the decision of Schemerhorn agt. Van Allen, (13 Howard, 82.) So far as the referee on the trial of a cause stands in the place of the jury, I do not see why he is not obnoxious to the same objection on the score of bias or prepossession, which could be urged against a juror on the second trial of the same cause. The fact that a juror had once heard the evidence and had formed an opinion upon the merits of the case in this way, would be a good ground of principal challenge to a juror. And when a case is to be retried upon the merits and upon the same evidence adduced before, and the referee is committed in opinion upon such evidence, the case should go to a new referee. But I do not think this objection a good one where the referee is overruled merely upon the law, and the decision of that question involves no prejudice or bias upon the facts of the case. ■ On questions of law, judges and referees make frequent mistakes, and the more experience they have in judicial proceedings, the more conscious they are of their liability to error, and the more ready they are to mistrust their first impressions and take a pleasure in correcting the error. There doubtless is much diversity of character among referees, as among judges, in respect to the pertinacity with which they adhere to opinions once formed; but whatever may be the private opinion of a referee upon the law of a case, every member of the bar of sufficient standing to be designated a referee, will, I trust, so far respect himself and the court, and knows too well his duty, not faithfully to conform to its decisions on the trial of any cause which may be referred to him. Judges more or less, at every circuit held by them, try over causes where they have been overruled upon the law by the court of appeals or their brethren, and it would be quite extraordinary if a judge did not, in such a case, try it upon the law as thus settled, as fairly as any other judge; and so I think it ought to be with referees; and I cannot think it will be otherwise with'the learned referee to whom this cause stands referred.

The decision of the referee in this case, in adjourning the cause to give the defendant’s attorney time to give the requisite notice for the examination of the defendant as a witness, affords no ground of complaint or exception to the plaintiff. His decision was eminently proper under the circumstances. A referee should not allow any unfair advantage to be taken by one party over his adversary, or lend himself to either party. By the course of the plaintiff’s attorney, in giving the notice of trial, and notice of the examination of his client as a witness at the latest period for such notice, and at such a time and manner as to preclude the defendant from giving cross notice to the like effect, the plaintiff would have had an unconscientious and unfair advantage, if he referee had gone on to trial on the 19th of November. The law allows the parties to be witnesses for themselves, and it is the duty of courts and referees, to administer and carry out its provisions fairly. The defendant’s attorney could have no reason to have given this notice till the cause was noticed for trial, and he was apprised that the plaintiff proposed to offer himself as a witness in his own behalf; and if he acted with diligence upon receiving such notice, he ought not to be forced to trial till he could have time to give the proper notice to comply with the statute. Upon the whole, I can see no ground for changing the referee, and on conferring with my brother, Strong, who examined the case more particularly, and wrote the opinion of the court, when the case was before the general term, he concurs with me in the opinion that there is nothing in the case to warrapt such a change. But if the plaintiff desired to change the referee, this application should have been made before noticing, and proceeding to the re-trial of the case on his part. The motion is denied, with $7 costs.