88 N.Y.S. 58 | N.Y. App. Div. | 1904
In this action,, which was brought for an accounting between copartners, an interlocutory judgment was entered directing an accounting and appointing a. referee to take and state the accounts of the copartnership. This accounting was brought on before a referee on September 28, 1903. From the affidavits upon which this application was made, it appeared that as soon as the counsel for the defendants Dunn arrived in the referee’s office, the referee made this statement in the presence of counsel for the plaintiff and counsel for the defendants Dunn : “ If is customary for a réferee before proceeding with a reference to enter into some agreement as to his fees. I have thought over the matter, and think that $15 a session would be about right. I have to neglect my Other business to
On October 29, 1903, the next session of the reference, there appeared upon the stenpgrapher’s minutes a stipulation by which a stenographer was to be employed and his fees were ■“ to be paid by the prevailing party in addition to the referee’s fees and taxed by the prevailing party as a disbursement in the action.” When the form of this stipulation was called to the attention of the counsel for Dunn, he stated to the referee that the stipulation as found in the minutes was not correct, was not as he agreed, nor as given to the stenographer by the referée, and that he desired it changed to conform to what had been agreed upon. Counsel for the defendants Dunn,in his affidavit stated : “The referee disputed my statements and, turning to the stenographer, said in an angry and passionate tone, ‘ Put this on the record. Counsel for defendants Dunn rescinds the stipulation entered into at the hearing yesterday,’ ” to which counsel for the Dunns stated, “ Mr. Marks states that he doeS not repudiate the stipulation of yesterday, but insists that there is an error in the stenographer’s minutes in having inserted the words ‘ to be paid by the prevailing party ’ in the stipulation; and I say that I expressly objected yesterday to those words going in the stipulation- and believe the minutes will show it — the original minutes — and 1 am willing that the stipulation as found on page 4 shall stand except' that words on the fourth line from the bottom ‘ to be paid by the prevailing party ’ into the third line from the bottom of the page be stricken from the stipulation and I insist that I made that objection yesterday.” 1 The affidavit then continues: “ As I saw, the referee was very much incensed at my statements and kept on insisting that he remembered
In answer to the application the affidavit of the referee was presented to the court, which differs in some particulars from those of the defendants Dunn and their counsel, and we accept the statement of the referee as a correct statement of what happened before him. The referee says that at the first hearing, on the eighteenth of September, when counsel for the respective parties were present, “ I made the customary suggestion that an agreement as to' my fee be stipulated, and said that I thought $15 per hearing would be fair. To this Mr. Marks answered that his clients objected to incurring any expense in the reference whatever; that they denied that there was anything due the plaintiff; that the plaintiff was irresponsible, and that he had no authority to make such a stipulation. I waived my suggestion and acquiesced in the statutory fees. At the same
Absolving the referee from any intention to do wrong, it nevertheless remains that a situation was created which might have justified a conclusion thas he was prejudiced or hostile to the party refusing to comply with the request. Although this may have been the result of a misunderstanding, it was evidently created by the act of the referee himself; and the question is then presented whether, under' the circumstances disclosed, the defendants should be compelled to continue the trial of this case before him. It would appear from the record that this interlocutory judgment was entered upon the pleadings. The only matter thereafter involved was an accounting to be taken before the referee. He acted in that capacity as a judicial officer whose findings upon questions of fact which were in dispute would be to a large extent conclusive, and he was required to determine questions of law that would arise as the reference proceeded. It is hardly necessary to say that either party to such a proceeding is entitled to an absolutely disinterested referee, who will determine the questions with impartiality. The fees of a referee are regulated by section 3296 of the Code of Civil Procedure, which provides that “ a referee in an action * * * i&
This provision of the Code of Civil Procedure does not contemplate that the referee is to fix his compensation, or that the parties to an action which is proceeding before a referee are to be placed in a position of having either to grant or refuse an application by the referee to be allowed fees in excess of those fixed. The parties have the right to stipulate as to the amount of fees that a referee is to receive, but in the absence of such stipulation the fees of the referee are fixed by the statute. When a member of the bar is requested to act as referee it is entirely within his right to refuse to act for the legal fees, and the question for the counsel to determine is whether they are willing to stipulate that the referee be allowed to charge such an additional fee as will induce him to act; but when the referee lias taken such a position and requested counsel in the case to agree that his fees be fixed at a rate exceeding that allowed by the Code of Civil Procedure, he has then placed himself in a position in which it is manifestly improper to proceed with the reference, in case either of the counsel refuses to stipulate for the increased compensation. The State is bound to furnish to every litigant not only an impartial judge, but a judge who has not by any act justified a doubt of his impartiality; and when a referee has placed himself in such a position that a party to an action is justified in feeling that he is not impartial, the party entertaining such a conviction should not be compelled to continue the trial of the case before the' referee. This feeling on the part of a party to the action must be based upon some act of the judicial officer in his conduct of the litigation; but where it appears that the conduct of the officer has been such as to justify a feeling that he is to some extent prejudiced, then the due and orderly administration of justice necessarily requires that the referee should withdraw from further connection with the case.
Assuming that the referee’s statement of the occurrence in this case is correct, and there was no prejudice in his mind, and that he
To justify the granting of this application it is not necessary that we should find that the referee was prejudiced or that any act of his showed prejudice against these defendants. But when he asked these parties to consent that his compensation be in excess of that allowed by law he placed himself in a position which allowed a party refusing that consent to feel that, as he had stood in the way of the referee receiving a pecuniary advantage, the fact of the refusal would influence the referee in his action during the litigation. That the defendants Dunn and their counsel believed that the referee was prejudiced against them is perfectly apparent from these papers, and that conviction was the natural result of the act of the-referee in requesting additional compensation and that the defendants stipulate to be liable for it, and such a conviction was not, under the circumstances, unreasonable.
It follows that the order appealed from should be reversed and the motion granted, without costs, and the case remitted to the Special Term to appoint a new referee.
Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.
Order reversed and motion granted, without costs, and the case remitted to the Special Term to appoint a new referee.