52 N.Y.S. 872 | N.Y. App. Div. | 1898
This action having been once tried and .the judgment having been reversed by the Court of Appeals, on the twenty-seventh of February an order was entered upon the consent of all the parties to the action, including that of the appellant, referring certain issues in the action to a referee to hear and determine the same. The issues thus
Before considering the merits of this application, it is well to call attention to the claim made that this moving party has no interest
It is further claimed by the respondents that the relation of the referee to the city was well known, and that the fact that he had been in the habit of acting as counsel for the city must have been known to the respective parties or their attorneys when they consented to his appointment. The affidavit of the attorney for the appellant states that he had no such knowledge that the relationship of attorney and client existed between the referee and the city at any time until after the entry of the judgment in this action, and. until this application was made. There is nothing to impeach the' truth of that statement, and we should not be justified in considering it untrue. In the determination of questions of this kind public policy intervenes; and while I suppose there would be no objection to two parties submitting their differences to the attorney of one of the parties for decision, if there was clear proof that the relation of the referee to one of the parties was fully understood at the time that his consent was obtained, it would not do for a party attempting to enforce a judgment of his own counsel or attorney in his favor, to say that, when such attorney or counsel was appointed, the other party in interest should have known of the relation that existed between them. Before such an appointment could be upheld, it must clearly appear that the relation that existed between the referee and one of the parties was communicated to the other party, and was fully appreciated and understood by him. In this case-there is the express statement of the attorney for the appellant,
We thus come down to the main question, whether or not the relation existing between the referee and the city of New York, by reason of the fact that at the time the referee was appointed to hear and determine this action, he was in the employ of the city as its counsel and was conducting important litigation for it, and continued performing such services and receiving large sums of money as compensation for them during the time that the action was on trial before him as referee, was consistent with the position of referee to hear and determine a claim against the city. If the city of New York was a private litigant, a manufacturing or railroad corporation, and the person having a claim against such a corporation had, in ignorance of the fact, consented to the appointment of the attorney or counsel for the corporation to act as referee to determine the validity and the extent of his claim, I apprehend that no court would for a moment hesitate to set aside any report that was made and vacate the order of reference, and that, irrespective of any consideration of actual influence exerted by the parties upon its own attorney or counsel in the litigation. The sole fact of the relation that existed between one party to the action and the referee would make it improper for the referee to occupy the position as judge, to determine the question of the claim against his client from whom he was receiving compensation for services rendered. The courts have again and again stated that the question upon applications of this character was not whether the attorney had been improperly influenced, or whether his conduct had been such as to show prejudice or partiality, but whether from the relationship of the parties or the acts of the referee it was possible that such influence had been exercised, or whether on account of such relationship, or for some other reason, the fairness of his decision could be justly questioned. This question was lately before this court in the case of Reynolds v. Moore (1 App. Div. 105), where Mr. Justice Barrett, in delivering the opinion of the court, says: “ 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
The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements,' and motion granted, with ten dollars costs.