Opinion
Decided September 11th, 1871
W. Watson, for appellant.
A.R. Dyett, for respondents.
Section 8 of the Constitution provides, that no judge shall sit at General Term in review of his own decision. The case showed that Justice INGRAHAM, who made the order appealed from at Special Term, was a member of the General Term, by which the order dismissing the appeal was made. He was incompetent to sit upon a review of the order upon its merits, or to take part in determining, whether the order was appealable to the General Term, as the latter inquiry, involves an examination of the order equally with a determination of the appeal upon the merits. Hence, the General Term, as constituted, could not entertain the question, whether the order of the Special Term was not made upon the merits, instead of being based upon the alleged irregularity of the plaintiff's practice. The order of the General Term cannot, therefore, be sustained by this court upon any such ground. The only question presented to the General Term, that Justice INGRAHAM could participate in determining was, whether the appellant had waived his appeal, by appearing at the General Term, upon the hearing of the appeal, taken by the respondent from the decision of the Special Term, sustaining the demurrer of the appellant to one of the defences interposed by the answer of the respondent. Such appearance was not a waiver of the appeal from the order made by Justice INGRAHAM. An appeal from a judgment or order, or the right to appeal therefrom, is waived by the party seeking to prosecute the appeal, having availed himself of a benefit given to him by the judgment or order, or proceeding in the cause, upon the assumption of the validity thereof. The appellant, in the present case, has done neither. The benefit secured to him by the order was a new trial of the issue of fact. He has done nothing under this provision, appearing at the General Term and resisting the reversal of the order of the Special Term, sustaining his demurrer to the answer of the respondent, did not assume the validity of the order of Justice INGRAHAM setting aside the judgment. It was necessary for the appellant to sustain his demurrer, whether the order of Justice INGRAHAM was properly granted or not. He must sustain the demurrer to uphold his right of recovery in either event. Sustaining the demurrer was a proceeding having no connection with or dependence upon that order. The counsel for the appellant insists, that as the whole merits are shown by the case, this court should determine, whether the order of Justice INGRAHAM was proper, the same as though such order had been reviewed upon its merits by the General Term. In this the counsel overlooks the incompetency of Justice INGRAHAM, so to review it. Had it been so reviewed and determined by a court in which he sat, it would have been the duty of this court, to reverse the order upon appeal, upon the ground that the court was not authorized to hear the case without considering, whether the determination was right or wrong, otherwise the provision of the Constitution would be wholly nullified. It must be assumed that the General Term only entertained and passed upon the question, whether the appellant had waived his appeal, as that was the only question the court, as constituted, were authorized to determine; and having erred in determining that he had, the order dismissing the appeal, must be reversed with costs, and the appeal heard by the General Term authorized to hear and determine it.
All concur. Order reversed.