Opinion
November, 1911.
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 of this section, the unquestioned facts show that he did within its spirit and purpose. The issues in the first proceeding were the amount and value of the decedent's property. In the present proceeding one of the issues, at least, is the same. We think that the two proceedings may reasonably be regarded as one and as within the provisions of the statute. On this ground alone we think that the order dismissing the alternative writ should be reversed, and that an absolute writ should issue, restraining the surrogate from any further proceedings in the matter, except to make and file a certificate of his disability. All concurred, except Betts, J., dissenting, who voted for affirmance on opinion of court below. Order dismissing alternative writ reversed and absolute writ directed restraining the surrogate from any further proceeding in the matter, except filing certificate of disability.