John I. Duryea, Appellant, v. William C. Traphagen, Executor, etc., Respondent

John I. Duryea, Appellant, v. William C. Traphagen, Executor, etc., Respondent. (Argued January 31, 1881; decided March 1,1881.) The plaintiff had a claim against Jame,s W. Wilson, and after the latter’s death, presented it to defendant, his executor, by whom it was disputed, and thereupon, with the approval of the surrogate, it was heard before a referee, who reported in favor of the defendant, wholly disallowing the claim. A motion was then made on behalf of the executor, at a Special Term of the Supreme Court, héld by Justice John R. Bbady, for a confirmation of the report, and a counter motion was at the same time made by the plaintiff, founded on a case and exceptions, to set aside the report, the first of which motions was granted, and the last denied. After judgment entered, an appeal was taken to the G-éneral Term, where the order and judgment'were affirmed, Justice Brady, as the record shows, being at the time a member of the appellate court and joining in its decision. It was claimed that his action at the General Term was in violation of article 6, section 8 of the Constitution, which provides that “no judge or justice shall sit at a General Term of any court, or in the Court of Appeals, in review of a decision made by him or by any court of which he was at the time a sitting member.” The court say: “We do not .see any answer to the objection. We have held in such case that the court of review was improperly constituted, and was not authorized to hear the appeal, and, therefore, its judgment must be reversed, irrespective of the question whether its determination was right or wrong. (Pistar v. Hatfield, 46 N. Y. 250; Real v. The People, 42 id. 276.)” E. H. Benn for appellant. Charles Matthews for respondent. [MAJORITY — Finch, J.,] Finch, J., reads for reversal. All concur. Judgment reversed.