Devlin v. Mayor ( 1882 )

Van Brunt, J.

I entirely fail to comprehend from what source the special term of this court acquires • the power to vacate the order of reference in this action to a single referee which has been affirmed by the general term of this court and also by the court of appeals. If it has not been settled in this case that it was proper to order the issues joined herein to be tried and determined before a single referee, then no question can ever be determined in an action, even by the court of appeals, which may not be reversed by the court at special term. The identical application which has resulted in the order appealed from was made at the time the original order was made, and it was denied, and an order of reference made to a single referee, and this decision has been affirmed by both the general term and the court of appeals.

If it was improper to make the order of reference- to one referee, the general term should have- reversed the order of reference upon that ground and not affirmed it, as was done. By the order of reference made — and properly made, as has been decided by the court of appeals—the power of this court upon the question of reference was exhausted. The trial of the cause had devolved upon the referee thus appointed, and this court had no power to divest him of the functions with which he had been clothed, except upon the discovery of new facts unknown at the time of his appointment and which made it improper for the referee to act.

The Code provides that the court may refer a case to one or three referees. After the court has referred a cause to either one or three referees, and that action has been sustained upon appeal as proper, neither the same judge who made the original order nor any other judge holding the court has any power to change, alter or modify such order, especially in a respect which was before the court upon the' original application. An order of reference once made, the power of the court is exhausted, unless it is invoked upon a new state of facts. As well might the judge at special term have — after it had been decided by the special term, by the general term and the court of appeals that an order of reference to one referee was proper — granted a motion that the cause should be tried by a jury, as to decide that the cause should be tried by three referees instead of one. But it may be urged that the order appealed from does not change the original order of reference, but simply adds something to it.

The fallacy of this position seems to be very apparent. By the original order of reference it was determined that the case was a proper one to refer to one referee, and by the order in question it is decided that it was not proper to refer the cause to one referee, but that there should have been three, which is the granting of a motion previously denied, which denial had been affirmed by the highest court, and not a single new fact presented. The order also seems to me entirely unwarranted in attempting to appoint what is called therein additional referees, and also providing that under certain contingencies that the additional referees may be discharged. I can find no authority for the appointment of additional referees. If a reference is made to three, they are all referees having the same powers, the same rights; there is no distinction between them; the decision of the majority is conclusive and there is no provision in the Code that under any circumstances two may be discharged, and the case decided by one.

As the orders of reference now stand, the original referee seems to be a sort of presiding justice at this trial, and his associates are to be his humble advisors — a condition of things utterly at variance with the provisions of the Code.

The referee had been sworn, the case opened and witnesses sworn, before this motion to increase1 the number of referees was made. If, at this stage of the case, such a motion can be made, then the court could grant such an application at any time before the final decision by the referee.

It does seem that where a party has succeeded in having a certain mode of trial declared to be proper by all the appellate courts, and has noticed, his cause for trial, has opened the case before the tribunal declared to be a proper one, and has sworn his witness, he should be allowed to proceed to the determination of his rights without any further interference upon the part of the court.

The order appealed from should be reversed, with costs.