APPEAL by the plaintiff, Mary Clara Wilcox, from an order of the Supreme Court, made at the Onondaga Trial Term and entered in the office of the clerk of the county of Onondaga on the 1st day of March, 1910, granting the defendant's motion to set aside a verdict in favor of the plaintiff and for a new trial made upon the minutes.
This case was transferred from the Fourth Department to the Third Department of the Appellate Division.
Hancock, Hogan & Hancock [Stewart F. Hancock of counsel], for the appellant.
Howard C. Wiggins, for the respondent.
The opinion of the trial judge in this case is reported in 66 Miscellaneous Reports, 253. It probably sets forth a sufficient statement of the facts herein and reference is made thereto.
The husband of the plaintiff had been a member of the
Royal Arcanum. That order had attempted to expel him. The trial judge held that Frank Z. Wilcox was not tried by a tribunal properly constituted for the trial of such charges and that the tribunal selected could not properly try him. With that holding of his I agree fully and for the very excellent reasons which he gives for such holding.
He, however, holds further that its action was not void but voidable and could not be attacked collaterally in this proceeding and that it must stand until it is set aside in a proper proceeding for that purpose. Hence he set the verdict aside. With this second determination of the learned trial judge I do not agree.
The plaintiff's husband was given a benefit certificate upon which this action was brought. This certificate was never surrendered and remained in the possession of said Frank Z. Wilcox or the beneficiary thereof, his wife, this plaintiff, until the time of trial.
In my opinion if Frank Z. Wilcox did not have a legal and fair trial, was not properly expelled from this order, legally expelled from this order, this certificate is good, he died a member of the order and a recovery can be had in this action by the beneficiary therein.
In 1 Freeman on Judgments (4th ed. § 145), referring to the disqualification of the judge at common law, it is said: 'While it is well settled by the common law that no judge ought to act where, from interest or from any other cause, he is supposed to be partial to one of the suitors, yet his action in such a case is regarded as an error or irregularity not affecting his jurisdiction, and to be corrected by a vacation or reversal of his judgment, except in the case of those inferior tribunals from which no appeal or writ of error lies.'
There was no appeal permitted to Wilcox farther than he did carry his appeal in the order; and, hindered and delayed by the defendant, he died before he could bring to trial his proceeding for mandamus brought to ...