Bell v. Vernooy

Bockes, J.: The record in the County Court was in due form, and established an apparent lien upon the plaintiffs' real property. Passing the point that the relief sought in this suit might have been obtained [127] by motion in the County Court, and admitting- that this action was well brought in theory to remove the lion, inasmuch as the proof necessary to establish its invalidity was de hors the record, then wo are of the opinion that the facts relied on to support it are insufficient to effect that result. The invalidity of the judgment entered in the County Court is put upon this ground : That such judgment was based on an order of reference which was void, inasmuch as the judge of that court, which Avas in session at the time the order was entered, Avas disqualified by the statute from acting in the suit by reason of his relationship to one of the parties. It appears that the order of reference was by consent of parties to the action. The judge, therefore, exercised no judicial function on its entry. Consent to the oi’der being given by the parties to the action, its entry upon the record Avas matter of course. A formal approval even, by the judge, was not necessary to its validity. The order would have been valid, entered out of term on the Avritten stipulation of the parties. (Code, § 270.) In this case there Avas in effect a waiver, of a formal written stipulation. Parties Avill be held to such waiver, after having recognized the order by going to trial before the referee named in it without objection, and they Avill thereafter be estopped from denying its validity. (Note to Diddell v. Diddell, 3 Abb., 167, 171, and cases there cited; also Scudder v. Snow, 29 How., 95; Quinn v. Lloyd, 7 Robt., 157; Greason v. Keteltas, 17 N. Y., 491; Macy v. Nelson, 62 id., 638; Bingham, v. Disbrow, 37 Barb., 24; Bucklin v. Chapin, 53 id., 488.) This was not an ex parte order, if indeed that would have made any difference after trial without objection ; but the case is the same as if the parties were all present and joined in the entry on the record. If a party actually draws up an order and himself enter it upon the record, Avould he not be deemed to have consented in writing to the order ? Would not such action be deemed equivalent to a stipulation, in writing, on his part, to its entry ? The order, in terms, declares his consent in such case. Noav, in this case, the clerk in entering the order acted for the parties and, as Ave may presume, in their presence. His action was their action, and thus by the order itself reciting their consent; there was in point of fact a consent in writing by the parties actually entered [128] in the record. The judge performed no judicial duty or act. None was required of him by law ; and even although this action was taken by the parties, while the court was in session, it was well and properly done by them without aid from the judge. His consent or sanction was quite unnecessary to its regularity and validity. If valid without his sanction, his approval of the order would not render it invalid. Stress is laid on the fact that the order is entitled “ at a court held, etc. Present • — • lion. A. SchooNMaker, jl*., county judge.” But the entitling constituted no part of the order and may be disregarded. (In the Matter of the Knickerbocker Bank, 19 Barb., 602; Dresser v. Van Pelt, 15 How., 19, 25.) At most it would show only that it was entered while the court ivas in session. Yet, as has been remarked, this fact would not in any way effect an order entered, as this one might have been, out of court on stipulation. The case is not brought with in the purview of the statute, which declares that no judge of any court can sit as such in any cause in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties. The judge decided nothing in the action, nor did he select the referee who tried and determined it. The referee was chosen by the parties themselves, and was by them brought in to adjudicate upon and to determine their rights in the way authorized by law. It is further urged, on the part of the respondent, that this action cannot be maintained, inasmuch as complete and appropriate relief, if any were needed, could have been attained in the suit in the County Court by proper application there — another person having succeeded Judge SchooNMaker as county judge. It is not deemed necessary to consider this point, as the conclusion above reached necessarily leads to an affirmance of the judgment appealed from, and the judgment should bo affirmed, with costs. Learned, P. J., and Boardman, J., concurred. Judgment affirmed, with costs.