Carrold v. Blum — 157 N.Y.S. 7

Majority

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CARROLD v. BLUM.

(Supreme Court, Appellate Term, First Department.

January 14, 1916.)

Headnote

Appeal and Ebboh <^=>1046—Review—Habmless Ebbob.

Though the trial judge was absent from the courtroom during the entire summation of counsel for both sides, that does not warrant a new trial, where it was admitted that no prejudice had been caused by the judge’s absence.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4128-4131, 4134; Dec. Dig. <S=^1046.]

<@=^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from City Court of New York, Special Term.

Action by Thomas B. Carroll against Max D. Blum. From a judgment entered on verdict of the jury, and an order denying a new trial, defendant appeals. Affirmed.

See, also, 152 N. Y. Supp. 961 .

Argued January term, 1916, before GUY, BIJUR, and CAVE-CAN, JJ.

Slade & Slade, of New York City (Maxwell Slade and David Slade, both of New York City, of counsel), for appellant.

Howard J. Bloomer, of New York City (Leo Levy and Alex. Davis, both of New York City, of counsel), for respondent.

This appeal is based on the single fact, alleged in the affidavit of defendant at Special Term, that the trial judge was absent from the courtroom during the entire summation of counsel for both sides.

While we are of opinion that the duty of a judge presiding at a Trial Term to be present during the trial is too manifest to require discussion, there is no claim made in this case—and appellant’s counsel has, with commendable frankness, so stated upon the argument—

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that any prejudice has been caused by the judge’s absence. No incident or interruption is referred to or claimed to have occurred during the summation, and no appeal or intent to appeal to the judgment or authority of the court is even suggested.

Under these special circumstances, the absence of the judge has happened to become merely casual, and does not, in our opinion, warrant reversal of a judgment which is otherwise entirely justified by the law and the facts of the case.

Order affirmed, with $10 costs and disbursements.