Murdock v. International Tile & Trim Co. — 35 N.Y.S. 668

Majority

p. 668

(14 Misc. Rep. 225.)

MURDOCK v. INTERNATIONAL TILE & TRIM CO.

(City Court of Brooklyn, General Term.

October 28, 1895.)

Headnote

1. Judse—Disqualification—Review of Own Decision.

A judge who settles the form of judgment in a case tried before a referee, and grants an allowance, is disqualified, by the provision of the constitution forbidding a judge to sit in review of his own decision, from taking any part in an appeal from the judgment.

2. Same—Waiver.

The constitutional disqualification of a judge to sit in review of his own decision cannot be waived.

Appeal from special term.

Action by Harvey Murdock against the International Tile & Trim Company to foreclose a mechanic’s lien. There was a judgment in favor of plaintiff, and defendant appeals. Reargument ordered.

Argued before CLEMENT, C. J., and VAN WYCK and OSBORNE, JJ.

Higley & Ferguson and J. T. Marean, for appellant.

Smith & Martin, for respondent.

This case is an action in equity to foreclose a mechanic’s lien, and was tried before a referee. The referee did not report the form of the judgment, and therefore it was settled by the court. The constitution provides that no judge shall sit in review of his own decision, and, technically, I am disqualified from taking any part in this appeal, for the reason that the form of the judgment was settled by me, and I granted an allowance. On the argument I suggested that there was a doubt in my mind on this question, and the attorneys agreed to waive the point. The disqualification of a judge cannot be waived, and, if judgment is rendered by this general term, the same could be set aside on motion, for the reasons stated. Oakley v. Aspinwall, 3 N. Y. 547 .

A reargument is therefore ordered. All concur.

Cases cited

Oakley v. Aspinwall 3 N. Y. 547 N.Y. p. 668