People v. Clark & Gorton , 21 Barb. 214 ( 1855 )

By the Court, T. R. Strong, J.

The validity of tne bond is not, in my opinion, affected by the circumstance that Finnegan, the associate justice, had, when the bond was taken, been employed by the defendant Clark as Clark’s counsel in the case. It is provided by statute, (Laws of 1847, ch. 280, § 31,) that “ no judge of any court shall have a voice in the decision of any cause in which he has been counsel, attorney, or solicitor, or in the subject matter of which he is interested,” but that provision does not reach the present case. If applicable to a justice, in such a proceeding, it relates only to a decision of the cause. In the absence of any other statute prohibition embracing the case, I think Finnegan was not absolutely disqualified as such justice because he was Clark’s counsel. Clark has no reason to complain, nor his co-defendant, any more than Clark himself.

[Monroe General Term, December 3, 1855.

It is found by the jury, that on the day and at the place •specified in the condition of the bond for the appearance of Clark, the justice Foster was associated with the justice who issued the warrant, with the consent of Finnegan, who was present acting as Clark’s counsel in the matter. I think this consent was binding on Clark, and that it was competent for him by his counsel to waive all objection arising from the substitution of another justice in the place of Finnegan. The consent given was such waiver. The operation of the consent and substitution was, to make Foster ap associate justice, with like effect as if he had been associated originally. Foster, being a justice of the peace of the county, might have been associated in the first instance ; he had full power under the statute to .act, on being associated; and no ground, of objection to him as associate justice existed, except that another had been called on and acted as such. This might be removed by consent. The consent did not confer any power on Foster ; it simply authorized his substitution.

The bond was in the name of the people as obligees ; and might be prosecuted in their names ; if not prosecuted by the proper officer the remedy was by motion.

In my opinion, the plaintiffs are entitled to judgment on the verdict.

Selden, T. R. Strong and Welles, Justices.]