65 BARB 272 - Stebbins v. Brown

How this case has been cited

Cited by 9 later decisions — most recently December 1933

9 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

By Che Court, Davis, J.

¶1This is an appeal from an order made at Special Term, by Justice Cardozo, denying a motion to set aside the report of the referee.

¶2The report is in favor of the plaintiff. It appears that while the case was pending before the. referee, who was a practising attorney, the plaintiff employed him to *273prosecute and collect two several demands against other ■ parties, on one of which he brought suit, and the other remained in his hands unprosecuted at the time the report was made. The referee had not been the attorney or counsel of the plaintiff prior to his appointment as referee in this action.

[First Department, Generai Term, at New York,March 3, 1873,

¶3Ingraham and Davis, Justices.]

¶4• The court does not deem it important to inquire whether the decision of the referee was or was not affected favorably to the plaintiff by his retainer in the matters above mentioned, for we regard such an inquiry as immaterial. We deem it our duty to place our decision upon the unquestioned fact, that while the referee was acting in the trial of this action as an officer of the court, he accepted the retainer of the plaintiff and became, in respect to other matters, his attorney and counsel.

¶5The rule should be inflexible, that such a fact will, ipso facto, avoid the report of a referee, bfo other rule will protect the referee from the approach of temptation, or shield the administration of justice from the suspicion of impurity.

¶6On this ground, alone, the order of the court below should be reversed, and the report of the- referee, and the judgment entered thereon, be set aside, and a new trial ordered, with costs of the motion and of this appeal.