41 N.Y.S. 802 | N.Y. App. Div. | 1896
This case has been twice tried. The first trial was before Mr. Justice Cullen without a jury. At the conclusion of the evidence, Judge Cullen rendered an oral decision, which was taken down by the stenographer in attendance, but which never became effective, inasmuch as Mr. James Eclcerson, one of the original plaintiffs, died before any written decision was* prepared and signed. A jury was also waived on the second trial, which now comes up for review.
The plaintiffs have recovered a portion but not all of the property for which they sued. They have appealed from that part of the judgment which is not in their favor. In disposing of the
He received in evidence, against the objection and exception of the plaintiffs, the decision of the case announced by Mr. Justice Cullen at the close of the testimony upon the first trial, saying that he wished to know what the decision of Judge Cullen had been and all that had transpired on the, previous hearing. This proof was not admissible. The opinion of one judge upon the issues of fact, announced at the end of a trial which does not result in any judgment, is not competent evidence to guide or influence the determination of those issues of fact by another judge upon a second trial. (See Reliance Marine Ins. Co. v. Herbert, 87 Hun, 285.) The admission of such an opinion is especially objectionable in a case like the present where witnesses were examined who were not called at all upon the first trial. The error might be overlooked as harmless to the appellants were it not that the judgment before us embodies precisely the conclusion reached by Mr. Justice Cullen, and that the trial judge .indicated unmistakably that he was influenced by Judge Cullen’s view of the facts, where he said at the close of the testimony : “ I think I shall follow the decision of Judge Cullen. * * * I think I will follow Judge Cullen’s decision, and that will be doing substantial justice.”
While the result reached by the learned judge may have been quite correct, the plaintiffs were entitled to his individual judgment on the questions of fact without regard to any other judicial opinion on the facts ; and this they did not have.' The case must, therefore, go back for a new trial.
Judgment reversed, so far as appealed from, and new trial ordered, with costs to abide event.
All concurred, except Cullen, J., not sitting.
Judgment, so far as appealed from, reversed and new trial granted, with costs to abide the event.
