9 How. Pr. 1 | N.Y. Sup. Ct. | 1851
A referee takes the place of a jury as well as of the court.' His decision upon questions of fact, like that of a jury, is, as a general rule, conclusive. Whenever there is any, even the slightest reason to suspect that the verdict of a jury has been affected by any influence exercised by the sue
The reasons which have led the court to be thus careful in preserving the integrity of the jury-box, apply, I think, witn great, if not equal, force to the decisions of questions of fact by a referee. Such decisions having the same legal effect as a verdict, the parties when they submit their rights to this kind of tribunal should feel that they have the same guarantee against any improper influence as they would have had, if the questions had been left to the decision of a jury. An error of the referee upon a matter of fact, is not the less fatal to the rights of the party, because, besides acting in the place of a jury, he also decides questions of law.
In Gale agt. Gwinits, above cited, Mr. Justice Paige had this question before him, and came to the conclusion, although doubtingly, as he says, that the same rule ought to be applied to referees as to jurors. It is a question of some importance, especially in the present state of the practice, where so large a proportion of the issues of fact joined in our courts are tried in this manner, and I have given it some reflection. I have also taken the liberty of conferring with my brother Parker on the subject, and we both concur in the views expressed by Mr. Justice Paige. He held that where a referee, in the absence, and without the consent of the opposite party, received explanations from the witnesses of one of the parties, it was sufficient ground for setting aside the report. If the same principle be applied to this case, the report cannot stand.
The referee admits, in his affidavit, that he had repeated conversations with the plaintiff’s attorney in the absence of the
Again, it must be admitted that the referee stepped entirely aside from the line of his duty, when he allowed himself, before he had decided the case, to prepare an opinion adverse to the plaintiff, not for the purpose of deciding the case in accordance with'such opinion, but, as he says, with a view to its effect upon the witness himself. The motive may have been creditable to the heart of the referee, but I think the mode of its execution was objectionable.
It is charged in the moving papers, that upon receiving the opinion of the referee, the plaintiff’s attorney sought an interview with the referee and then persuaded him to change his opinion and make a report for the plaintiff. That he, in fact, had such an interview with the referee is not denied. Nor is it denied, that he endeavored to persuade the referee to make a report for the plaintiff, or that he presented the arguments and considerations set forth in the defendant’s affidavit. All
The motion must, therefore, be granted.
The order of reference, also, must be vacated, and a new trial had at the circuit. The costs upon the reference and the costs of this motion should abide the event of the suit.