Eckerson v. Archer — 10 A.D. 344

Majority

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J. Esler Eckerson, Individually and as Executor, etc., of James Eckerson, Deceased, and Others, Appellants, v. Charles D. Archer and George Archer, Respondents.

Headnote

Trial — when the unsigned decision of the court on a first trial is inadmissible on the second.

Upon the trial of an action, before the court without a jury, an oral decision upon certain issues of fact was made, which was taken down by the stenographer in attendance, but which never became effective because one or the plaintiffs died before a written decision had been prepared and signed; upon a second trial, which also took place before the court without a jury, the court admitted in evidence and considered and apparently followed the decision of the justice who presided at the first trial.

Held, that the admission in evidence of the opinion of the judge who first tried the case was erroneous;

That this was especially so in a case where witnesses were examined upon the second trial who were not called upon the first trial.

Appeal by the plaintiffs, J. Esler Eekerson and others, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Rockland on the 4th day of Hay, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term, as adjudges and decrees “That the boundary lines between so much of the lands described in the further and amended supplemental complaint as belongs to and is owned by the plaintiffs, and so much of said lands described in said further and

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amended supplemental complaint as is owned by the defendants, is a line which begins at a point on the easterly side of Allison avenue, as laid on the map of John D. Christie, surveyor, dated May 19th, 1892, and introduced in evidence on behalf of the defendants herein, and marked Exhibit Ho. 1, running thence in a straight line easterly, passing a point twenty-three feet southerly of • the south side of the southernmost pit-slied, or shafting post on the land of the defendants, as indicated on said map, to the southerly side of the kiln shed post placed at .the southwesterly corner of the kiln shed on the land of the defendants, and continuing said line thence in a straight line to the edge of the dock in front of said lands, but that such boundary line shall not affect in any respect any lands, except such as are involved in this action.”

And also from so much of the judgment in the above-entitled action as orders, adjudges and decrees “ That the defendants, in the capacity set forth in their answer, are the owners and entitled to the possession of so much of the lands described in said further and amended supplemental complaint as lies northerly of said boundary line, and are entitled to retain possession of that part of said lands described in said further and amended supplemental complaint, and the plaintiffs are not the owners and are not entitled to recover possession of that part of said lands.”

Ralph E. Prime and Ralph E. Prime, Jr., for the appellants.

Irving Brown, for the respondents.

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

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appeal it is necessary to consider only a single ruling of the learned trial judge, for that appears so clearly to be erroneous as to demand a reversal.

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.