The summons in this action was issued by the recorder as acting city judge. Under the charter of the
The power to act is, therefore, dependent upon the existence of one or more of the above facts; which must be proved, as any other facts, by competent evidence. The recorder has no right to assume that the city judge is under any of the prescribed disabilities, or to base his power to act upon mere rumor, surmise or unsworn statements.
Upon the return day, the defendant, appearing specially, moved to dismiss the complaint, upon the ground that the city judge was not disqualified. This motion was denied.
When the motion was made, there was no presumption that the city judge was disqualified; it then became the duty of the plaintiff to show, affirmatively, the facts upon which the power of the recorder to act depended. The return contains no evidence upon this subject. The denial of this motion was, therefore, .error, which requires a reversal of the judgment. Under section 3063 of the Code of Civil Procedure, as construed in the case of ¡Markel v. Cummer, 84 App. Div. 634, this court has only power to order a new trial when the judgment is contrary to or against the weight of evidence; therefore the reversal must be absolute, with costs.
Judgment reversed, with costs.