4 How. Pr. 253 | N.Y. Sup. Ct. | 1849
The objection made by the defendants’ counsel to the regularity of the proceedings of the referee is not founded merely upon his examination of the sawmill dogs in question, but upon such examination being made in the absence and without the knowledge or consent of the defendants, with the assistance of Ransom and Cady, the two principal witnesses of the plaintiff, and upon his receiving, at the time of such examination, explanations from such witnesses, (one of whom was the plaintiff’s son-in-law,) respecting the operation and condition of the sawmill dogs. It is insisted by the defendants’ counsel that this was an irregularity on the part of the referee, which had an improper influence on his mind, prejudicial to the plaintiff. The plaintiff opposes this application upon the ground, that the defendants could not have been injured by the examination of the machine by the referee, as all its parts about which there was any dispute, were subsequently brought into conrt by the defendants, and also upon the ground that the irregularity of the examination by the referee was waived by the counsel of the defendants, on his being informed of such examination by the referee, on a subsequent hearing of the cause. There is a conflict in the affidavits in relation to the alleged fact of the communication-of information to the defendants’ attorney by the referee, of his examination of the machine, in the presence of Ransom and Cady; and also in relation to the fact that such examination was mentioned by the witnesses Ransom and Cady, in their testimony given on the subsequent hearing of the cause. If the defendants and their counsel were both ignorant of the examination by the referee of the machine in the presence of Ransom and Cady, until after the report of the referee was made, there could be no waiver of the irregularity. I think, however, that the weight of the evidence on this point is against the defendants. But upon a critical examination of all the affidavits, I have come to the conclusion that no information was given either to the defendants or to their counsel on the subsequent hearing of the cause, that the referee, at the time he examined the sawmill dogs, held any conversation with Ransom and Cady in relation thereto, and that he received from them at the time of such examination explanations respecting the operation and condition of the machine.
The question then arises on this motion whether the act of the referee
The report of the referee and all subsequent proceedings must be set aside, and the cause must be tried at the circuit unless a new referee is appointed. As the plaintiff is not shown to be in any way in fault, costs must abide the event of the suit.
The decision of this motion disposes of the motion to set aside the adjustment of the costs. It is not therefore necessary to pass upon the questions of regularity raised on that motion. As the defendants are entitled to have the report and all subsequent proceedings set aside for the irregularity of the referee, the motion in relation to the adjustment of costs are unnecessary. To dispose of that motion, it may be denied without costs to either party.