In re Estate of White

By the Court, Rhodes, J.: It appears by the affidavit filed in support of the, motion for a change of venue in this cause, that when the proceedings were instituted the Probate Judge held a power of attorney from certain persons claiming to be the heirs at law of the deceased, authorizing him to receive for them all moneys and property which they might be entitled to from the estate of the deceased; that he also received a letter from those persons, in which they offered him a percentage upon the proceeds of said estate coming to them, upon a settlement thereof, and that these proceedings were instituted, as the affiant was informed and believed, at the instance and upon the advice of the Probate Judge. These affidavits are uncontradicted. The Act concerning Courts of justice and judicial officers (Stats. 1863, p. 343, Sec. 66) provides that “a Judge shall not act as such in any of the following cases: first, in an action or proceeding to which he is a party, or in which he is interested.” The proposition that a person bearing this relation to the parties to the proceeding, and occupying this position in respect to the subject matter of the controversy, is interested in the proceeding, is to our minds too clear to require argument.

We will content ourselves with citing Oakley v. Aspinwall, 3 N. Y. 547, in which the reasons and the sound policy of the rule excluding a Judge from sitting in a case in which he is interested, or where he is related to either party, are ably discussed and vindicated. It is no answer to the disqualification arising from interest in the proceedings to say that the decision in the cause was correct. The statute does not say that the Judge is disqualified to decide erroneously, but that he shall not decide at all, except to arrange the calendar and the order of business, or to change the venue.

Judgment reversed and cause remanded, and ordered that the remittitur issue forthwith.