Clover-East Associates v. Bachler

Order unanimously reversed in accordance with the Memorandum, without costs of this appeal to any party. Memorandum: It is conceded that [621] oral argument of the motion was had before one Justice of the Supreme Court and thereafter without consultation with the parties or their attorneys and without stipulation the papers were sent to another Justice who without any argument decided the motion in respondent’s favor. Section 21 of the Judiciary Law specifically provides that a Judge other than an appellate one “shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge.” The order appealed from was made under the very circumstances prohibited by this section and therefore must be vacated (Smith v. State of New York, 214 N. Y. 140, 144; People v. Hooper, 22 A D 2d 1006). We have dealt solely with the procedural question involved and pass upon no other questions presented by the briefs. (Appeal from order of Monroe Trial Term denying application of defendants to strike case from the Jury Calendar and directing trial as a nonjury case.) Present — 'Williams, P. J., Goldman, Henry, Noonan and Del Vecehio, JJ.