Murdock v. International Tile & Trim Co. — 70 N.Y. St. Rep. 486

Majority

p. 486

Harvey Murdock, Resp’t, v. International Tile and Trim Company, App’lt.

(Brooklyn City Court, General Term,

Filed October 28, 1895.)

Headnote

1. Judge—Disqualification.

A judge, who settles the form of a judgment in a case tried before a referee and grants an allowance, cannot take part in an appeal from such judgment.

2. Same—Waiver.

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

Appeal from "judgment in favor of plaintiff, and motion for a reargument.

Higley & Ferguson and J. T. Marean, for app’lt; Smith & Martin, for resp’t.

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 j udgment, 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. 486