129 N.Y.S. 300 | N.Y. App. Div. | 1911
The. plaintiff appeals from an order of the Special Term denying its motion to. set aside all' the proceedings had upon the trial of the cause, and to send- the cause hack to the Trial Term for retrial.. The ground of the motion was that the justice who presided at the trial was disqualified by reason of interest.
The action is prosecuted by the Public Service Commission for the first district, suing in the name of the People of the State of New York, to recover several hundred thousand dollars from defendant as penalties for his alleged refusal to obey an order of said Commission. Defendant is the receiver of the Union Railway Company, a street surface -railroad, and was appointed by the United States Circuit Court. The cause came on for trial before Mr. Justice Beady, who, at the outset, and before any proceedings had been .taken in the trial, informed counsel for both parties that he was a stockholder in the Third Avenue Railroad Company; that he did not know whether the interests of that company were involved, but that he knew that the defendant was also receiver of the Third Avenue Railroad Company. Counsel for both parties expressed their willingness that the justice should proceed to try the cause, but he, being apparently unwilling to proceed on consent if there could be any doubt as to his interest, pursued the inquiry further, and was assured that there could be no objection to his hearing the cause, the counsel for plaintiff being especially emphatic on that question, and saying: “ I don’t understand there is any possible objection.” The result of the-trial was a dismissal of the' complaint, the exceptions being ordered to be heard in the-first instance at the Appellate Division. After this result the plaintiff’s counsel formed a different opinion as to the disqualification of the justice from that which they had expressed upon the trial, and tnoved at Special Term that all proceedings had before Mr. Justice Beady be declared a nullity, and that the cause be restored to the Trial Term calendar. This motion was denied and the plaintiff has duly
It is also argued that counsel for plaintiff by consenting that the justice should hear the cause, and by assuring him that there was no legal impediment to his doing so, has estopped himself and his clients from afterwards raising the objection that the .justice was in fact disqualified^ This argument is untenable and has uniformly been so held since the decision of the Court of Appeals in Oakley v. Aspinwall (3 N. Y. 547). The statute respecting the disqualification of]a judge is peremptory. “ A judge shall not sit as such in or take any part in the decision of a cause or matter * * * in which he is interested.” (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 15.) Such an interest goes to the very jurisdiction of the judge to sit as such, and while parties in civil actions may by stipulation waive any right which is personal to themselves, they cannot by consent confer jurisdiction to act as judge upon one whom the statute says shall have no such jurisdiction. Oakley v. Aspinwall (supra) was similar to the present case in that the counsel who afterwards attacked the eligibility of the judge had participated in the argument before him- and had overcome his scruples as to his eligibility by assuring him that in fact he was not ineligible.. It was argued, among other things, that counsel had thus estopped himself. Answering this argument’ the court said: “It is diffi
It follows that the order appealed from must be affirmed, with ten dollars costs and disbursements.
Ingeaham, P. J., McLaughlin, Millee and Dowling, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.