Schermerhorn v. Van Alen
New York Supreme Court
Motion to substitute referee. The action was brought to recover for services rendered by the plaintiff for the defendant, as an attorney and counsellor at law. Various issues of fact having been joined in the action, it was referred to David S. Cowles, Esq., as sole referee, to hear and determine the same. The cause was tried before the referee, who reported in favor of the plaintiff. The judgment upon the report was .reversed upon appeal, and a new trial awarded.
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Motion to substitute referee. The action was brought to recover for services rendered by the plaintiff for the defendant, as an attorney and counsellor at law. Various issues of fact having been joined in the action, it was referred to David S. Cowles, Esq., as sole referee, to hear and determine the same. The cause was tried before the referee, who reported in favor of the plaintiff. The judgment upon the report was .reversed upon appeal, and a new trial awarded. The plaintiff moved that another referee be substituted in the place of Mr. Cowles.
1Opinion of the Court
Harris, Justice.
The referee, it is conceded, possesses all the requisite qualifications for an intelligent discharge of the duties of the office. But were the issue to be tried at the circuit, however well qualified he might be in other respects, the referee, if called as a juror, would be set aside, on the ground that he had heard the proofs in the case, and had not only *83formed, but had expressed an opinion upon the very questions to be tried.
I am aware that this objection has not been regarded as tenable when made against a referee. But I have never been able to see any good ground for the…
2Cited by1 opinion
- Lennon v. SmithNew York Court of Common Pleas · 1892