Opinion
June 27, 1963
In a proceeding instituted to acquire transmission line easements at places lying between the Villages of Walton in Delaware County and Norwich in Chenango County defendant, O. W. Lines, Inc., appeals from an order of the Supreme Court at Special Term denying its motion to disqualify one of the Commissioners of Appraisal appointed pursuant to section 13 of the Condemnation Law upon the ground that he is not a disinterested freeholder within the meaning of the statute. The integrity and good faith of the Commissioner are not questioned. During substantial portions of the years 1927, 1936 and 1942 this Commissioner was employed by the plaintiff or its predecessor. Acting as the agent of his employer he was engaged in procuring rights of way similar to those sought to be acquired in this proceeding and located in the same general area. Between 1929 and 1932 he was associated with a firm employed to negotiate the purchase of like rights for public utility corporations operating in the Cities of Binghamton and Elmira. A judicial proceeding must not be open to the slightest suspicion. Rigid adherence to this principle is imperative. In the light of the Commissioner's employment by the plaintiff and his inevitable experiences on its side of the bargaining table in a field closely related to the instant appropriation process, the peril of subconscious bias on his part is not farfetched. In our view sound judicial policy dictates his replacement as a member of the commission. (Condemnation Law, § 13; Matter of Village of Hempstead [ Busch Props.], 265 App. Div. 819; City of Plattsburg v. Kellogg, 254 App. Div. 455; Matter of Low, 142 App. Div. 533, 536; Rochester, Syracuse Eastern R.R. Co. v. Tolan, 116 App. Div. 696; Adirondack Power Light Corp. v. Prodger, 121 Misc. 280.) Order reversed, on the law and the facts and in the exercise of discretion, without costs and the proceeding remitted to Special Term for the appointment of a Commissioner in his place and stead. Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ., concur.