Keeffe v. Third Nat. Bank of Syracuse

• Decision Date: 29 January 1904
• Citation: 69 N.E. 593,177 N.Y. 305
• Parties: KEEFFE et al. v. THIRD NAT. BANK OF SYRACUSE et al.
• Court: New York Court of Appeals Court of Appeals

177 N.Y. 305

69 N.E. 593

KEEFFE et al.

v.THIRD NAT. BANK OF SYRACUSE et al.

Court of Appeals of New York.

Jan. 29, 1904.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Arthur J. Keeffe and others against the Third National Bank of Syracuse and others. From a judgment of the Appellate Division (80 N. Y. Supp. 1138) affirming a judgment for defendants, plaintiffs appeal. Affirmed.

This action was to set aside and vacate a judgment recovered in March, 1900, wherein the defendant the Third National Bank was plaintiff and the plaintiffs in this action, with others, were defendants, entered upon a decision rendered by Mr. Justice Hiscock, after a trial before him at Special Term. 63 N. Y. Supp. 1049. In March, 1891, the Third National Bank retained the firm of Hiscock, Doheny & Hiscock to bring an action upon two promissory notes owned and held by it, made by the Syracuse Fibre Ware Company to the order of Torry, treasurer, and indorsed by John C. Keeffe and Catherine L. Keeffe. They caused a summons and verified complaint to be served upon the defendants John C. Keeffe and Catherine L. Keeffe and the Syracuse Fibre Ware Company. None of the defendants appeared or answered, and on the 30th of April, 1891, judgment by default was entered against them. On that day said attorneys duly issued an execution on such judgment, which was returned unsatisfied except as to the sum of $580 collected thereon. Thereafter, and within one year from the entry of the judgment, the bank paid said attorneys in full for their services in such action, and the relation of attorney and client ceased, and was finally terminated. When that action was brought, the justice who tried the case was a member of that firm, but was not consulted in reference thereto, or in reference to the action, judgment or proceedings had therein, and gave no advice and performed no services in respect to the same. In November, 1896, he was duly elected a justice of the Supreme Court, entered upon his duties as such January 1, 1897, and is still such justice. It was before him the action brought by the Third National Bank against Arthur J. Keeffe, Lewis A. Hawley, John C. Keeffe, Catherine L. Keeffe, Syracuse Fibre Ware Company, Syracuse Land & Steamboat Company, and Syracuse Rapid Transit Railway Company was tried. The firm of Hiscock, Doheny & Hiscock was dissolved just prior to Justice Hiscock's entry upon his duties as such, and the latter has had no interest in said firm or its business, or any connection therewith, since its dissolution. Nor was said firm in any way connected with or interested in the second action, directly or indirectly. No question as to any disqualification on the part of the trial justice was raised upon the trial of that action, or until it reached the Court of Appeals. The plaintiffs in this case made a number of motions in that suit before the same justice, obtained several orders upon which they acted and under which they received substantial benefits, and they also have received substantial benefits under the judgment they now seek to set aside. At the time of the trial the plaintiffs in this action were fully aware of all the facts as to Justice Hiscock's relation to the firm of Hiscock, Doheny & Hiscock, as to the judgment obtained by that firm and the execution issued thereon, but in no way objected or even suggested at the Special Term that the said justice was disqualified, and in no way questioned the jurisdiction of the court as thus constituted. The judgment in that action was affirmed by the Appellate Division. There was, however, no evidence given therein as to the relation of said justice to the firm of Hiscock, Doheny & Hiscock, but the same question which is presented upon this appeal was argued in the Court of Appeals by the appellants in that case, where the judgment was affirmed. Upon the trial of this action the Special Term dismissed the complaint, an appeal was taken to the Appellate Division, where it was unanimously affirmed, and from that judgment the plaintiffs have appealed to this court.Louis Marshall, for appellants.

George W. O'Brien, for respondents Third Nat. Bank of Syracuse and others.

James S. Thorn, for respondent Syracuse Fibre Ware Co.

MARTIN, J. (after stating the facts).

The only question presented upon this appeal is whether the trial justice was disqualified to hear and determine the case resulting in the judgment which this action was brought to vacate and set aside. The appellants' claim that he was thus disqualified is based solely upon the provisions of section 46 of the Code of Civil Procedure, which forbids a judge to set or take part in the decision of ‘a cause or matter’ in which he has been attorney or counsel.

The first question arises as to the meaning which should be given to the words ‘cause or matter,’ as used in that section. When we examine the Code, we find that all judicial proceedings are divided into actions and special proceedings. An action is then defined as an ordinary prosecution, in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense; and ‘every other prosecution by a party, for either of the purposes specified,’ is declared to be a special proceeding. Sections 3333, 3334. In the light of these provisions it seems quite clear that the words ‘cause or matter,’ in section 46, were intended to refer only to actions or special proceedings in which a judge might sit or take part, the word ‘cause’ meaning a cause of action, and the word ‘matter’ referring only to some judicial matter or proceeding, and under the Code is included in special proceedings for...