Majority
p. 349THOMAS CREGIN, Administrator, etc., of JAMES CREGIN, Deceased, Respondent, v. BROOKLYN CROSSTOWN RAILROAD COMPANY, Appellant.
Headnote
Trial before a judge disqualified by reason of Ms intei'est as a stockholder of the: defendant a corporation — the successful party, if successful on a new trial, entitled to costs of both.After this action had heen tried, and a verdict rendered for the plaintiff, and before entry of judgment it was discovered that the judge was disqualified, being-one of the executors of an estate holding stock in the defendant corporation. The action was retried before another judge, and the plaintiff again recovered a verdict.
Held, that the plaintiff was entitled to tax costs for two trials.
Appeal from an order denying a motion for a readjustment of costs.
This action was tried before Hon. A. McCue, judge of the City Court of Brooklyn, and a jury, and a verdict was rendered for the plaintiff.
Thereafter and before entry of judgment it.was discovered and decided that the said judge was disqualified from sitting, because of interest, under 2 R. S., 275, section 2, he being a co-executor of an estate holding stock in the defendant corporation, and another trial was thereupon had before another judge, on which a verdict was again rendered for plaintiff.
The case having been meanwhile transferred to the Supreme Court, by certificate, of two judges of the City Court, of disqualification to sit at General Term, the county clerk of Kings county, under objection, taxed all the costs of said proceeding before Judge McCue, as though there had been a lawful trial. A
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motion in the nature of an appeal was made at Special Term, to disallow these items, which motion was denied, and this appeal is taken from the order entered thereon.
Britton eg Ely, for the appellant.
J. Wamn Lawlm, for the respondent.
The order appealed from should be affirmed.
The first trial was before a court having jurisdiction, and there was a verdict had.
The disqualification of the trial judge was an irregularity which prevented the entry of judgment, but it cannot deprive the suc■cessful party of his costs.
Order affirmed, with ten dollars costs and disbursements.
Present — Gilbert, and Dykman, JJ.
Order denying retaxation affirmed, with ten dollars costs and •disbursements.