By the Court, Potter, J.
■ The referees in this case acquired jurisdiction of' the matter by their -appointment, and they-then possessed all the powers' that ■ were' formerly possessed- by three judges' of the commofi pleas of the county, under the provisions of title one, article'four, chapter six, part one of the revised statutes. It is necessary, therefore, to look at the statute referred to, in order to see- what -powers such three judges did possess. By § 87, 1 R. S. 518, notice was required to be given to the commissioners, and to one or more of the applicants for the road, specifying the time and place at which the judges (now referees) will convene to hear the appeal. This was done. By § 88, p. 519, eight days’ notice was required to be given, of the time mentioned.therein, to the commissioners and applicant; and the manner of service is specified. Of all this there is no complaint. By § 89, “It shall be the duty of the judges to 'convene at the time and place mentioned in the notice, and hear the proofs and allegations of the parties. They shall have power to issue process to compel the attendance of witnesses, and may adjourn from time to time as may he necessary.” All the power that is expresssly conferred to ■ direct or control the action of the referees1 upon the hearing, or as to the mode of conducting the appeal, is above- stated. Every other [125]*125power which they can exercise must be such as is incident to their express powers. The effect of their action within their power need not at this place be referred to. It is their duty to hear; it is also their duty to determine; and they are empowered to compel the attendance of "witnesses; about which no question is raised; and all power conferred beyond this is, “they may adjourn from time to time, as may be necessary” So far as adjournments were in question, there was no limit, so long as adjournments were necessary, which was a matter of discretion with the referees. They had most undoubtedly this power; but adjournments for further hearing were no longer necessary in this case, after the case had been submitted. There was then an end of the hearing. It was then left with the referees for decision. Their adjournments for the decision were perhaps as necessary as for the hearing, and the power to adjourn I have no doubt still continued, as a necessary incident of the power to decide. They entered upon the duty of deciding. They, or a majority of them, agreed upon some things in the way of deciding. They adjourned to meet again. A form of decision reversing the determination of the commissioners was prepared by one referee, and signed by another in accordance with the general views of these two of said referees, to be presented at the next meeting then appointed for the decision of the case. These facts, though they fall short of constituting a final decision, and which decision it was agreed should be deferred, are stated merely to show that the referees had then, in their own minds, closed the hearing, and had entered upon that part of their duty which required them to decide upon such hearing. Between the two periods, that is before the next day of meeting to decide, several inhabitants of the town of Argyle, not parties recognized by the statute as having a right to be heard as parties, obtained a meeting of the referees, not on an adjourned day, and made an application to them to have the hearing opened; using such arguments and reasons as were calculated to influence the action of the referees. [126]*126This, though perhaps not so intended, was a most officious, improper and meddlesome interference with the rights of parties to a proceeding who were not present, and a tampering with the opinions of a body of officers acting upon their oaths, intrusted with the performance of solemn judicial duties, and the decision of important interests of the citizens. The courts should never look but with disapprobation upon such direct interference with the action of bodies upon whom the law has cast the power of disposing of, or affecting the property or interests of others. A justice of this court, or any other, would frown upon any such attempt upon him, and would punish as for contempt any such interference with a jury; and referees in a such case are not an exception. And though good faith, as it is claimed, may have been the moving principle, the precedent is dangerous, and should not be sanctioned or tolerated. The fact that one of the referees, who before that, at the last regular meeting, had drawn up a written decision of the case, had at the next adjourned day so changed his mind as to agree to deliberate upon the application so improperly made, is far from proving that such interference did not influence the decision. Though the return does not show it, the opinion of the referees may have become known outside; and if the application may be based upon such a state of things, a case is never settled or submitted. Though the faith of the parties may be pledged to a submission, interested individuals outside will not fail to open litigation, so long as either party is informed that weak points may be strengthened, or that the testimony of some witness should be impeached; that the weight of evidence against him before the referees must be changed. If such a practice could be tolerated such motions will be the order, and endless litigation the result; and if upon another hearing the weight is found in the other scale, another opening of the case will be applied for, and for the same reason it should be, but may not be granted; and this court would possess no power to correct the abuse. At this period of time the [127]*127real question in the case arises, to wit, the question of power, The question of necessary adjournment for the hearing had once been closed; all the discretion granted for that purpose had once been exercised and exhausted; the necessary adjournments for the purpose of deciding the case they doubtless still possessed, but even that discretion for the purpose of deciding, had now come to an end by their action upon this new view of the case, so improperly brought before and taken by the referees. Notice of this application of citizens of Argyle, before the referees, was given to the son of the relator only, and at a further adjourned meeting this son appeared and requested a withholding of their decision upon said application, to enable him to interpose legal objections, which being granted he did interpose his objections to their entertaining a motion for a further hearing. The objection was overruled by two of the referees, and they then and there entertained a motion upon affidavits, without the previous service of copies thereof upon the relator, but then adjourned to enable the relator to determine whether he would present counter-affidavits; and for reasons of convenience to parties several adjournments were had without action, and at the next meeting the relator’s son again urged his objections to the power of the referees to open the hearing. Finally, this being overruled, he read affidavits to show that it was not a proper case for the exercise of such power. Replying affidavits were admitted. All these affidavits are returned with the writ.
By reference to these affidavits it is seen that those which were read in behalf of the commissioners and applicants for the road are affidavits impeaching the evidence offered on the hearing on the part of the relator, and cumulative evidence on the other side. The referees decided the motion in favor of granting a further hearing.
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By the Court, Potter, J.
■ The referees in this case acquired jurisdiction of' the matter by their -appointment, and they-then possessed all the powers' that ■ were' formerly possessed- by three judges' of the commofi pleas of the county, under the provisions of title one, article'four, chapter six, part one of the revised statutes. It is necessary, therefore, to look at the statute referred to, in order to see- what -powers such three judges did possess. By § 87, 1 R. S. 518, notice was required to be given to the commissioners, and to one or more of the applicants for the road, specifying the time and place at which the judges (now referees) will convene to hear the appeal. This was done. By § 88, p. 519, eight days’ notice was required to be given, of the time mentioned.therein, to the commissioners and applicant; and the manner of service is specified. Of all this there is no complaint. By § 89, “It shall be the duty of the judges to 'convene at the time and place mentioned in the notice, and hear the proofs and allegations of the parties. They shall have power to issue process to compel the attendance of witnesses, and may adjourn from time to time as may he necessary.” All the power that is expresssly conferred to ■ direct or control the action of the referees1 upon the hearing, or as to the mode of conducting the appeal, is above- stated. Every other [125]*125power which they can exercise must be such as is incident to their express powers. The effect of their action within their power need not at this place be referred to. It is their duty to hear; it is also their duty to determine; and they are empowered to compel the attendance of "witnesses; about which no question is raised; and all power conferred beyond this is, “they may adjourn from time to time, as may be necessary” So far as adjournments were in question, there was no limit, so long as adjournments were necessary, which was a matter of discretion with the referees. They had most undoubtedly this power; but adjournments for further hearing were no longer necessary in this case, after the case had been submitted. There was then an end of the hearing. It was then left with the referees for decision. Their adjournments for the decision were perhaps as necessary as for the hearing, and the power to adjourn I have no doubt still continued, as a necessary incident of the power to decide. They entered upon the duty of deciding. They, or a majority of them, agreed upon some things in the way of deciding. They adjourned to meet again. A form of decision reversing the determination of the commissioners was prepared by one referee, and signed by another in accordance with the general views of these two of said referees, to be presented at the next meeting then appointed for the decision of the case. These facts, though they fall short of constituting a final decision, and which decision it was agreed should be deferred, are stated merely to show that the referees had then, in their own minds, closed the hearing, and had entered upon that part of their duty which required them to decide upon such hearing. Between the two periods, that is before the next day of meeting to decide, several inhabitants of the town of Argyle, not parties recognized by the statute as having a right to be heard as parties, obtained a meeting of the referees, not on an adjourned day, and made an application to them to have the hearing opened; using such arguments and reasons as were calculated to influence the action of the referees. [126]*126This, though perhaps not so intended, was a most officious, improper and meddlesome interference with the rights of parties to a proceeding who were not present, and a tampering with the opinions of a body of officers acting upon their oaths, intrusted with the performance of solemn judicial duties, and the decision of important interests of the citizens. The courts should never look but with disapprobation upon such direct interference with the action of bodies upon whom the law has cast the power of disposing of, or affecting the property or interests of others. A justice of this court, or any other, would frown upon any such attempt upon him, and would punish as for contempt any such interference with a jury; and referees in a such case are not an exception. And though good faith, as it is claimed, may have been the moving principle, the precedent is dangerous, and should not be sanctioned or tolerated. The fact that one of the referees, who before that, at the last regular meeting, had drawn up a written decision of the case, had at the next adjourned day so changed his mind as to agree to deliberate upon the application so improperly made, is far from proving that such interference did not influence the decision. Though the return does not show it, the opinion of the referees may have become known outside; and if the application may be based upon such a state of things, a case is never settled or submitted. Though the faith of the parties may be pledged to a submission, interested individuals outside will not fail to open litigation, so long as either party is informed that weak points may be strengthened, or that the testimony of some witness should be impeached; that the weight of evidence against him before the referees must be changed. If such a practice could be tolerated such motions will be the order, and endless litigation the result; and if upon another hearing the weight is found in the other scale, another opening of the case will be applied for, and for the same reason it should be, but may not be granted; and this court would possess no power to correct the abuse. At this period of time the [127]*127real question in the case arises, to wit, the question of power, The question of necessary adjournment for the hearing had once been closed; all the discretion granted for that purpose had once been exercised and exhausted; the necessary adjournments for the purpose of deciding the case they doubtless still possessed, but even that discretion for the purpose of deciding, had now come to an end by their action upon this new view of the case, so improperly brought before and taken by the referees. Notice of this application of citizens of Argyle, before the referees, was given to the son of the relator only, and at a further adjourned meeting this son appeared and requested a withholding of their decision upon said application, to enable him to interpose legal objections, which being granted he did interpose his objections to their entertaining a motion for a further hearing. The objection was overruled by two of the referees, and they then and there entertained a motion upon affidavits, without the previous service of copies thereof upon the relator, but then adjourned to enable the relator to determine whether he would present counter-affidavits; and for reasons of convenience to parties several adjournments were had without action, and at the next meeting the relator’s son again urged his objections to the power of the referees to open the hearing. Finally, this being overruled, he read affidavits to show that it was not a proper case for the exercise of such power. Replying affidavits were admitted. All these affidavits are returned with the writ.
By reference to these affidavits it is seen that those which were read in behalf of the commissioners and applicants for the road are affidavits impeaching the evidence offered on the hearing on the part of the relator, and cumulative evidence on the other side. The referees decided the motion in favor of granting a further hearing. The question now fairly arises, does the power granted by the statute authorize this proceeding by a body known in law as one of inferior and limited jurisdiction ? Is the power to hear and decide such a motion, necessarily [128]*128incident to the power granted, which is power to adjourn for such further time as shall be reasonable ? Is it absolutely necessary to the due administration of justice that they should exercise such powers ? As no precedent can be found in the boobs of authority—no rules regulating such a practice—as these officers possess no powers by implication, but are, like all other inferior and subordinate officers and tribunals that are creatures of the statute, I think they are confined to the powers expressly conferred, or such as are necessarily incident to such conferred power. And as in all proceedings which may deprive a party of his estate, they are to be held to a strict construction of the statute, I have not been able to see in the features of this case that it is one that requires to be made an exception to the general rule, and to those long established safeguards to property. It is not necessary to say, in deciding this case, that there are no circumstances that would authorize such referees to open a case for a -rehearing, if by accident or mistake one of the parties had been deprived of any bearing whatever, ór even of but a partial hearing. It may be that such a power is incident to the power granted, and absolutely essential to the due administration of justice ; as accidents and mistakes must and will occur, where no human foresight can guard against them. But that is not the case here,, and no such question is to be decided. This case had been heard upon its merits and submitted upon the faith of the parties who had a right to be heard, and upon the advice of counsel, and the duty of deciding had been entered upon by the referees, and then not on account of any accident or mistake, or default, but because persons not recognized as parties to the proceeding, and who had no right to appear at all, either because they had heard, or because they suspected the weight of evidence was against their wishes and interests, asked to have the case opened. For what ? To impeach some of the testimony standing in their way, and to add to the weight of evidence on the other side. A court of original jurisdiction having the power, would have denied such a motion, [129]*129and would doubtless have rebuked the application. Such a power as has here been exercised by the referees, is not within the contemplation of the statute conferring the power, and would be a dangerous one to intrust to such a body, as is sufficiently demonstrated in this case. There is no case of precedent cited; and I have not been able to find a reported case where such authority has been exercised. The powers even of referees for the trials of civil causes which are commenced in the highest courts, and whose actions and conduct have ever been under the control of the courts, have never until recently been extended so far; and even they are subject to review by the court. They are not authority for this proceeding.
[Schenectady General Term,
January 7, 1862.
It is sufficient to say, that when the matter was submitted to the referees by the parties, their power for further hearing was at an end. The only power then left to them was to decide ; this included the incidental power of adjourning from time to time for this purpose, and to prepare and sign, and cause to be filed, the evidence of their decision. All proceedings to open the hearing, and all further hearing of the matter after the first submission, were without authority. They had no jurisdiction to open the case; they had lost all further jurisdiction to hear it upon the merits. All action following the motion to open was void.
It is not necessary to discuss the effect of the decision signed by two of the referees, nor of their power without consultation with their associate, to amend it. It is perfectly clear that their change of opinion upon their subsequent action was based upon such subsequent proceedings. The result is, their whole action must be vacated and set aside.
Ordered accordingly.
James, Rosekrans and Potter, Justices.]