Appellants invoke the rule that motions for irregularity in practice, based upon technical objections to proceedings had, must be taken promptly and before other steps are taken in the action. Such a rule has been applied in regard to the usual modes of •procedure. (Persse & Brooks Paper Co. v. Willett, 14 Abb., 119 ; Low v. Graydon, Id., 443; Lawrence v. Jones, 15 Id., 110.) Such motions must be made before taking other steps in the action. (Strong v. Strong, 1 Abb. [N. S.], 233; Jones v. U. S. Slate Co., 16 How., 129.)
Patterson v. Graves (11 How., 91) does not aid the appellants. There the motion was to set aside the report of a referee, because the report did “ not set forth the material facts found upon the issues passed upon by the referee, or what issue he did pass upon, or what facts he did find.” Bowen, J., said, the motion was based upon an alleged irregularity, and that a delay of seven months was an answer to it. The ground of the motion in this case takes the motion out of the rule laid down in the cases cited by the appellants. Besides, the affidavits at the Special Term satisfactorily excused any laches imputable to the moving parties.
The first notice of motion‘was for September 2,1881, and though then denied for want of proper jiapers, it was after-wards renewed, we must assume, by leave of the court properly given, and the delay satisfactorily excused. Nor did the service of the notice of appeal from the judgment, subsequent to the first notice of motion and prior to the second notice of motion, cut off the right of the respondents to sustain the motion to set aside the report of the referee for alleged misconduct.
By section 3296 of the Code of Civil Procedure, the fees of a referee were limited to six dollars per day. That section went into effect 1st September, 1880 (see § 3356 of Code of Civil Procedure), and the referee, at the time when the cause was submitted to him *103in February, 1881, was only entitled to an allowance of fees as specified in section 3296.
A different compensation might, in accordance with that section, have been fixed, by the consent of the parties, at or before the commencement of the trial or hearing, if such consent had been “ manifested by an entry in the minutes of the referee or otherwise in writing.” No such consent had been given, as the referee well knew, when he commenced his efforts .to have the parties stipulate for his compensation.
It must be assumed that he well understood the provisions of the section from which we have quoted, and that he was aware that the section had been somewhat strictly pursued and construed by the courts. (Marke v. City of Buffalo, 87 N. Y., 188; First National Bank v. Tamayo, 77 id., 478.) Andrews, J., said, in the case last cited, that “the statute wisely, we think, requires a formal written agreement between the parties before either can be subjected to the payment of referee’s fees beyond the prescribed rate.”
To obtain such an agreement as would give an increased rate for beyond what the statute had prescribed, the referee in the case before us set out and continued his efforts while in Colorado, and repeated and carried them on after his return and by the stipulation which he drew on Sunday, May first, he expected to overcome the force of the statute we have quoted if the same should be signed by all the parties. Finally his efforts failed, as Le Grand refused to accede to the request of the referee.
"Without saying that the referee acted in actual bad faith with an intent to procure to himself greater fees that he had or might earn, we must condemn his conduct in regard to the compensation to be allowed to him. The statute we may well suppose was aimed at all rates of compensation above six dollars per day, not given by the consent of the parties — the free consent — at or before the commencement of the trial or hearing.
Parties solicited by a referee, after the trial was begun, to give an enhanced fee to a referee, above and beyond that named in the statute, might be delicate about refusing, lest the, refusal should prejudice the party refusing, in the mind of the referee. Such efforts as the referee by his own affidavit admits (not to say those established by other proofs) should not be encouraged or sanctioned.
*104The policy of the law in guarding judicial trials from evil and the appearance of evil as well, require that such conduct as has been/disclosed should be condemned, and that a report following such conduct should be set aside and the parties remitted to another trial. (Yale v. Gwinits & Casler, 4 How., 253; Roosa v. S. & W. T. Co., 12 id., 297; Gray v. Fisk, 42 id., 135; Livermore v. Bainbridge, 44 id., 262; Carrol v. Lufkins, 29 Hun, 17.)
Confidence in the purity of the administration of the law cannot be maintained if such conduct be tolerated, and reports are allowed to stand, made by referees who start negotiations and stipulations for extra statutory fees, after a case has been submitted to them.
That the referee asked no more than he earned, that he received no more than he earned, furnishes no answer to the charge of impropriety. A new trial in this case may be expensive and may not produce a different result. But it is better that there be expense and delay in this case, than that an improper precedent be made.
Referees ought, like jurors, to be vigilant to avoid evil, to avoid taking a line of conduct which may affect their freedom of minds and neutrality in the cases under consideration. Ex parte treaties and conversations with either party as to any fact, point or fee ought to be avoided- Suitors have a right to an unbiased tribunal approaching the delicate duty of determining the facts and law of a case, uninfluenced by any solicitude or efforts to secure extra fees..
The cases to which reference has been made indicate how careful courts have been to see to it, that a decision be not allowed to stand in any case where it may have been reached by any consideration, not arising from the merits of the case as presented by the evidence and law of the case.
The order of the Special Term ought to be affirmed, with costs and disbursements.
Smith, P. J., and Barker, J., concurred.Order affirmed, with ten dollars costs and disbursements.