In re Bliss

46 N.Y. Sup. Ct. 594

• Court: New York Supreme Court
• Decided: March 15, 1886
• Status: Published

Opinion

Daniels, J.:

The habeas corjpus was issued by the relator George N. Bliss who was the husband of the respondent in the proceeding to obtain the •custody of Leonard G. Bliss, an infant under the age of fourteen years. He is one of the children of the marriage of the parties, ■and by an agreement made for their separation his custody was •committed to the wife who is the present appellant. Before the proceedings were taken an action was brought against her by her husband in the Court of Common Pleas for the city and county of New York, for a divorce because of her alleged adultery. The ¡issue in this action was referred to the referee whom the appellant •desires to have changed. After the hearing of the issue before him he made a report in favor of the plaintiff in the action, finding her from the evidence to have been guilty of adultery upon a number ■of different occasions mentioned in the report. Her alleged guilt, :it is expected, will form a material part of the controversy to be •determined by the referee under the order made in these proceedings, •and as he has already, in the action between the husband and wife, made a decision upon that fact, it is apprehended that he will be biased against her to that extent if the inference now ordered shall proceed before Him. How far this subject will be open for reconsideration before the referee in the habeas corpus proceeding it is not necessary now to decide, but it must be evident from the decision which has been made in the action in the Court of Common Pleas, that her conduct has already been made the subject of-adverse decision by the referee. Probably he would be able to divest himself of all the influence of that decision over his mind, in the hearing and disposition of the present reference, but it is not certain by any means that he could do so. That he would endeavor so (o do as a high-minded reputable member of the legal profession, is without doubt, but still, with all his exertions to accomplish that end, the present.decision made by him may yet have an. important influence over his mind in determining the effect of the evidence which will be submitted under the order in this proceeding. And to that risk the wife claiming the custody of the infant should not be subjected. She should, for the hearing and dis position of the proceeding, have it presented to a person whose mind is entirely free and unaffected by any preceding hearing, bringing in question the effect of the evidence which may again be taken in the course of the present reference. Every party in a court of justice is entitled to have his or her controversy presented to an unbiased, impartial tribunal, for the natural effect of the proof cannot be secured to it in any other manner, and there is certainly danger that such would not be the case if the hearing concerning the custody of this child should still be ordered to proceed before this referee. It is true that the counsel for the wife consented to the reference which has been ordered, understanding that the issue in the action was already before the referee. But that circumstance should not be allowed to have so much effect upon the disposition of the motion as to deprive her of her right to a tribunal in which she will have confidence, and which will not be liable to be biased against her evidence by means of a previous determination. The administration of justice should be entirely fair and thoroughly impártial. That is the great end and object intended to be secured by the laws of the State to every party appearing before a' court of justice in the course of legal proceedings. It is not intended to be intimated that it would be defeated by this reference proceeding before tbe referee already selected All that is designed to be said is that it may be defeated, and that this party is entitled as a matter of right to a tribunal for the hearing and consideration of the evidence before which she will not be subjected to this risk.

The order from which the appeal has been taken should be ■reversed, writh costs and disbursements to abide tbe event of the proceeding, and an order should be entered appointing another person as referee in these proceedings, either to be selected and agreed upon by tlie parties or, in default of such selection, by the court.

Davis, P. J., and Brady, J., concurred.

Order reversed, with ten dollars costs and disbursements to abide event, and order entered as directed in opinion.