Roosa v. Saugerties & Woodstock Turnpike Road Co. , 12 How. Pr. 297 ( 1855 )

Harris, Justice.

Although the referee had announced to the agent of the defendants his intention to decide the case against the plaintiff, and had received his fees, which he was only entitled to receive from the prevailing party, and from him only upon completing the discharge of his duty as referee; yet, according to the statement of the referee himself, he subsequently promised the plaintiff that he would not decide the case until a decision should be made by the general term of the supreme court in another causewhich was supposed to involve similar questions. It is evident, that when he made this promise he did not regard himself as having finally disposed of the case.

The referee further states, that about November, 1854, he was informed by the plaintiff that the decision of the supreme court, in the other case, had been made in his favor, and he then told the plaintiff that, if such was the case, he would decide this case in his favor also, and promised to make his report at an early day.

Mr. Bruyn, one of the plaintiff’s attorneys, states, that some time in the fall of 1854, the referee volunteered to say to him, without being spoken to or inquired of on the subject, that he had made up his mind to give a report in this case in favor of the plaintiff, and had promised him that he would draw up a report for him.

Mr. Cooke, the other attorney for the plaintiff, states, that during the session of the circuit court, held at Kingston in November, 1854, the referee came to him, and voluntarily told him that he had examined the case, and had concluded to decide it in favor of the plaintiff, and that he would hand to him, or the plaintiff, the report before the opening of the court the next morning, adding, that he then had it partly made out, and would finish it that evening.

The referee does not deny having made these statements, but he alleges that he did so, relying upon what the plaintiff had told him. in relation to the decision of the supreme court; that it was his intention, before making his report, to examine the decision in the other case, and, upon such examination, he found that, although the court had granted a new trial to the plaintiff, it had not pronounced upon the validity of the plaintiff’s claim..

The plaintiff further states, in his affidavit, that about the first of June, 1855, he' again called the attention of the referee to the subject, and was then told that the agent of the defendants had been at him about the report, and that he would decide it soon. The referee states, upon this point, that some four or five days before he made the report, both the plaintiff and the defendants’ agent called on him, and inquired about the report; that he slated to them, why it had not been made before, and then again promised to re-examine and decide the case that week; that he did accordingly re-examine the case, and on the Monday following made his report, and delivered it to the defendants’ attorney. '

Upon a state of facts like this, I feel constrained to set aside the report. In doing so, I am gratified to be able to say that the grounds upon which I put the decision do not, in any respect compromise the integrity of the referee. There is nothing in the case, even as it is made by the papers in support of the motion, which would justify the conclusion that the referee had, in the least degree, intended to swerve from an honest discharge’ of duty. But, as in the case of JDorlon agt. Lewis, (9 How. 1,) where the referee was a man whose integrity was above all suspicion, the report was set aside upon considerations of public policy, so here, while I see nothing in the facts which leads one to doubt that the referee intended, from the first, to do what he believed to be right in the case, yet the kindness of his temper and the simplicity of purpose, by which he has been actuated, have led him to a course of indecision and vacillation tending very greatly to impair the respect to which his decision would otherwise have been entitled. The fact, that nearly two years before finally deciding the case, he should have received his fees from one of the parties, assuring him that the decision was to be in his favor, and that afterwards, without informing the other party of what had occurred, he should first promise him that he would suspend a decision until the determination of another cause,, and then should assure him, and his attorneys^ again and again, that the report should be made in his favor; and then, again, as late as four or five days before the report was actually made, that the referee should promise both parties, as well the party to whom he had two years before declared that his mind was made up, and from whom he had actually received his fees, as the party to whom, and to whose attorneys, he had repeatedly promised a report, that he would re-examine the case, is more than I am willing to sanction. Conceding .that no injustice has been done—and whether there has or not, this is not the time to inquire—it is far better that the parties should be subjected to the expense of a re-trial before another referee, than that such a precedent should be left to exert its influence in the decision of similar cases which may arise hereafter.

All agree that the administration of the law must be pure and impartial. But it is scarcely less important that the conduct of those to whom its administration is entrusted should he such as to furnish to those who litigate no just grounds of suspicion.

I think the motion to set aside the report should be granted, but without costs.