21 Wend. 63 | N.Y. Sup. Ct. | 1839
By the Court,
It is declared by statute that “ no judge of any court can sit as such in any cause to which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties.” 2. R. S. 204, § 2, 2d ed. It is not denied that this applies to a justice. But'it is said, first, that no proof of relationship was given, and the justice,could not take judicial notice of it. Enough is collectable from the return, to warrant us in saying that it was admitted. I think, however, he may withdraw himself on his, mere suggestion, and such is the uniform course with other judges. In the case of a justice, as long ago as August, 1821, this court acted on his admission that he was the son-in-law of the plaintiff, as an auxiliary ground for reversing his judgment, Bellows v. Pearson, 19 Johns. R. 172. The statute is directory ; and doubtless had reference to the practice. The process sometimes goes on in the court of a judge to whom the party is related, where there are other judges having powerbut where there are none other, as in case of a justice, he can not issue process. Such an act would be. nugatory and void, for’he can not sit even to receive the return. The objection meets him.at the threshold; and if he issue process inadvertently, he ought simply to withdraw himself from the cause. He cannot sit, says the statute. The meaning is, not merely that the interests of the parties are unsafe, but the general interest of justice. Decency forbids that he should be seen acting either for or against his father, brother or cousin,-&c.
It is said very plausibly that the party sued and who is not connected, ought not to be deprived of his costs; and therefore the judgment of non-suit should have been allowed to stand. That would be true, if his interest alone had' been regarded by the statute. But I can not bring myself to.