People ex rel. Kennedy v. Gill
Appellate Division of the Supreme Court of the State of New York
The relators appeal from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Ulster June 26, 1911, denying an application for an absolute writ of prohibition and quashing and dismissing an alternative writ.
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The relators appeal from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Ulster June 26, 1911, denying an application for an absolute writ of prohibition and quashing and dismissing an alternative writ. The alternative writ commanded the respondent and the surrogate to desist and refrain from taking further proceedings for the removal of the executors and trustees under the will of David Kennedy, deceased, and to compel them to file an account and appear for examination with reference thereto. It also required them to show…
1Opinion of the Court
Sewell, J.:
The question presented is whether it was competent and right for the surrogate to hear and determine the issues in the proceeding before him. The claim of the appellants that the surrogate is disqualified is based upon section 15 of the Judiciary Law,* which provides that: “A judge shall not sit as such in, or take any part in the decision of, a cause or matter to which he is a party, or in which he has been attorney or counsel.” While it may be true, as claimed by the respondents, that the surrogate did not act as attorney or counsel in the same cause or matter, within the letter…
2Cited by3 opinions
- Fitzgerald v. WellsAppellate Division of the Supreme Court of the State of New York · 1959
- People v. StrewlAppellate Division of the Supreme Court of the State of New York · 1936
- People v. StrewlAppellate Division of the Supreme Court of the State of New York · 1936