Davis v. Seaward

156 N.Y.S. 242 | N.Y. App. Div. | 1915

Per Curiam:

The primary purpose of this action is to have certain designated judgments and orders made and granted in an action in the Supreme Court wherein the defendant in this action, George W. Seaward, as administrator, etc., was, and in which, prior to his appointment, his predecessor as such administrator had been plaintiff, and the plaintiff in this action, as executor, etc., was the defendant, declared void. It is claimed that Mr. Justice Joseph A. Burr sat as an associate justice of the Appellate Division, Second Department, in the hearing of two appeals to that court from judgments in that action. It is also claimed that Mr. Justice Burr was disqualified to sit as a member of the court on the hearing of these appeals. It is further claimed that because of these facts the judgments of the Appellate Division on the decision of these appeals were and each of them was void. It is conceded that if Mr. Justice Burr was not so disqualified plaintiff has no cause of action. This court adopts that part of the opinion of Mr. Justice Crane, who heard the case at Special Term (reported 85 Misc. Rep. 210), in which the question of the alleged disqualification of Mr. Justice Burr is discussed, and the conclusions thereon indicated in the opinion. -This determination by the trial court required the disposition of the case thereupon made. It is, therefore, not necessary to consider on this appeal the other questions discussed either in the opinion of the trial court or those presented by appellant’s counsel on this appeal. All concurred. Judgment affirmed, without costs.