#### Topia Mining Company, Respondent, *v.*Lewis Warfield, Respondent. J. Sidney Bernstein, as Sole Referee, Appellant. Topia Mining Company, Respondent, *v.*Lewis Warfield, Appellant. J. Sidney Bernstein, as Sole Referee, Respondent. Topia Mining Company, Respondent, *v.*Lewis Warfield, Appellant. J. Sidney Bernstein, as Sole Referee, Respondent.

(Appeal No. 1.)

(Appeal No. 2.)

(Appeal No. 3.)

First Department,

June 9, 1911.

Reference — request by referee for advance fees —removal!— conditions.

A referee "who during tire progress of the litigation asks each party to advance him a sum on account of his fees should he removed. Such request is improper.

On granting a motion for the removal of the’referee there should, how- ' ever, he imposed as a condition that the testimony of -witnesses now heyond the jurisdiction of the court which was taken before him might he read in evidence before the new referee subject to objections as to competency and relevancy.

Appeal by J. Sidney ’ Bernstein, as sole referee, from ,an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of April? 1911, removing the said appellant as referee and appointing a new referee in his place.'

Also' an appeal by the defendant, Lewis Warfield, from that part of said order which requires as a condition of the removal of the referee that the testimony of Gertain witnesses be retained in the case. -

Also an appeal by the defendant, Léwis Warfield, from an order of the Supreme Court, made at the New York Special Term, bearing date the 27th day of May, 1911, and entered in the office of the clerk of the county of New York, denying a motion to amend, modify and resettle the prior order removing the referee. . ' . •

*423The opinion of the Special Term rendered on the motion to remove the referee is reported in 71 Miscellaneous Reports, 175.

*Julius M. Mayer,*for the plaintiff.

*George Gordon Battle, for*the defendant.

*Morgan J. O'Brien*and *George Edwin Joseph,*for the referee.

Sgott, J.:

The court below was quite justified in removing the referee, and in view of the precedents in this court, could scarcely have done otherwise. *(Smith*v. *Dunn,*94 App. Div. 429; *Fortunato V. Mayor, etc.,*31 id. 271.) We do not attribute to the referee any improper motive in' asking each party to the litigation before him to advance a sum on account of his fees. It was doubtless only injudicious, but it was none the less improper. STor do we believe that the refusal or inability of one of the parties to make the proposed advance would, in fact, have prejudiced the referee against him. But the party so refusing might not be so certain, especially if the decision finally went against him. A referee stands in the place of the court, and it is as essential that litigants. before him should be assured óf his absolute impartiality as it is that litigants before the court should feel an assurance of its impartiality. What was said in *Smith*v. *Dunn (supra)*may be repeated here: “To justify the granting of this application it is not necessary that we' should find that the referee was prejudiced or that any act of his showed prejudice against these defendants. But when he asked these parties, to consent that his compensation be in excess of that allowed by law [to pay in advance a portion of a fee as yet unearned] he placed himself in a position which allowed a party refusing that consent to feel that, aá-he had stood in the way of the referee receiving a pecuniary advantage, the fact of the refusal would influence the referee in his action during the litigation.” The plaintiff’s attorney is not wholly free from responsibility for the condition which has been created, although we have no intention of attributing any improper motive to him. It would have been better, however, when he received what is certainly an unusual request, to have conferred with *424the defendant’s attorney, instead of immediately paying the referee the snm demanded. If he had so conferred, the parties conld and should have agreed either that both would pay, or-that neither should. We are also of the opinion that the court was right in imposing as a condition of granting the motion for the removal of the referee that the testimony taken before the removed referee of witnesses now beyond the jurisdiction of the cóurt might he read or given in evidence before the substituted referee, subject to legal objection as to competency or relevancy. ■ It would he a great hardship to the'plaintiff to require all this evidence to he taken over again, and there seems to he . no necessity for doing so. It is suggested that, the new referee should have the parties before bun, hut that result would not he assured by striking out that portion of the order permitting this evidence to he read, because as they are without the jurisdiction of the court their evidence might he taken on commission. The order denying defendant’s motion to resettle the-order of. removal was within the discretion of the justicé, and the appeal from it presents no question requiring consideration.

The orders appealed from are affirmed, with ten dollars costs and disbursements against the defendants on each .appeal, and-'without costs against the referee. . • •

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred. ■ ■

* Orders affirmed, with ten dollars costs and disbursements' against the defendant appellant, and without costs against the referee.