
    Anne Hodge et al., Respondents, v. 117 Jefferson Corporation, Appellant.
    Supreme Court, Appellate Term, Second Department,
    March 15, 1963.
    
      Bivin £ Welch (George S. Evans of counsel), for appellant. PoTcorny Schrensel £ P oho my (Sheridan Albert of counsel), for respondents.
   Eilperin, J.

The sole ground urged for reversal was the alleged disqualification of the Trial Judge under rule II of the Rules on Conciliation, System A. of the Munitipal Court of the City of New York. This rule, which was in effect when the action came on for trial, provided that a Justice who has made a conciliation effort “ shall not preside at the trial of any case in which he undertakes to bring about a conciliation unless by the consent of the parties.” Upon its adoption by the Board of Justices of the Municipal Court and approval of the Appellate Divisions in the First and Second Departments, this rule had “ the force of law ” (N. Y. City Mun. Ct. Code, § 8). In the instant case, the record indicates that the Trial Judge had previously participated in a conciliation effort. However, although defendant’s counsel made timely objection to the qualification of the said Judge to preside at the trial, by proceeding to trial and actively participating therein he must be deemed to have waived the right to assert such objection on appeal from an adverse determination on the merits. The judgment should be affirmed, with $25 costs.

Di Giovanna, J.

(concurring), votes for affirmance of the judgment upon the ground that no conciliation hearing was held within the meaning of Buies on Conciliation, System A. of the Municipal Court Code of the City of New York. All that appears to have taken place was an informal discussion between counsel and the court in the nature of a pretrial discussion. In any event, even if it be deemed that a conciliation effort was in fact made by proceeding to trial and submitting the case on the merits to the trial court, the plaintiffs waived any objection they had made to the qualification of the Trial Justice. (Mun. Ct. Code of the City of New York Ann. [1916], Edgar J. Latter, J.)

Concur — Di Giovanna, J., in opinion, in which Pette, J., concurs.

Judgment affirmed, with $25 costs.  