
    Harry L. Williamson, Respondent, v. Lewis V. F. Randolph, as President of the Consolidated Stock and Petroleum Exchange of New York, Appellant.
    First Department,
    March 9, 1906.
    Trial — suit in equity—new trial ordered, when trial justice designated to Appellate Division before signing and filing, decision — cause cannot await expiration of such designation — court cannot compel submission of case on former testimony.
    Although a justice of the Supreme Court has announced his decision in an equity-case before he is designated to the Appellate Division, he is thereafter disqualified from acting further in the case by section 2, article 6 of the Mew York Constitution, and cannot sign and file his decision. Under such circumstances there must be a new trial.
    
      It seems, that such, would not be the case if his term in the Appellate Division had expired and no motion had been made in the meantime for a new trial.
    When such trial judge is appointed to the Appellate Division for a term of fivé .years, the cause cannot await the time when his designation expires, as section 1010 of the Code of Civil Procedure provides that if the«decision he not filed within twenty days after the final adjournment of the term either party may move for a new trial.
    When únder such circumstances a new trial is ordered," the court cannot impose as a condition that it. he retried on the testimony taken on the former trial, because section 3 of article 6 of the Mew York Constitution provides that “the testimony in equity cases shall be taken in like manner as in cases at law.”
    Appeal by the defendant, Lewis Y. F. Randolph, as president of the Consolidated Stock and Petroleum Exchange of ¡New York, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of November, 1905.
    
      William V. Rowe, for the appellant.
    
      Egerton L. Winthrop, Jr., for the respondent..
   Ingraham, J.:

This action was tried before Hr. Justice Clabke, who announced ’that, he had determined it in favor of the defendant, filing an 'opinion stating the grounds of his decision. Before the decision was signed or judgment entered Hr. Justice Clabke was designated as a justice of the Appellate Division in this department, whereupon, on motion of the plaintiff, the corirt at Special Term set the case down for a new trial, and from.that order the defendant appeals.

Section 2 of article"- 6 of the Constitution provides that Ho justice of the Appellate Division shall, exercise any of" tlie powers of a justice of the Supreme Court, other than those of a - justice out of court and those pertaining to the -Appellate Division or tó the. hearing and decision of motions submitted by consent of counsel.”Under this provision of the Constitution a designation of a justice of the Supreme Court to the Appellate Division at once suspends his poxyer to -preside at the Special or Trial Terms, and during the period for which he was so.designated he can perform no judicial function except as "specially authorized by the Constitution. Ho decision having-been signed, the trial was not completed, and-Mr. Justice Clarke was. disqualified- from continuing the trial. If a decision had been actually signed and filed liefore his designation, a judgment could "have been made and entered- at the Special Term of the Supreme Court presided over by another justice. But the formal decision .required by section 1022 of the Code-of Civil 'Procedure -must be in writing and filed in the clerk’s office. (Code Civ. Proc. § 1010.) There would be no question if the term of office of the trial judge had expired, or if for any cause he had ceased'to hold the office. ' ,

The defendant,, however, claims that as Mr. Justice -Clarke’s right to decide this case was only suspended during the period that lié was acting as a justice of the Appellate- Division, the court had no power to order a new trial, but that the case must-wait until.his’ designation as "a justice-of tlie'AppelJate Division expires, xvhen he could resume the trial of the-.case, sign his decision and- direct entry of judgment. ' Undoubtedly, as we held in the case, of Irving National Bank v. Moynihan (78 App. Div. 141), if his term in the Appellate Division had terminated, no motion in the meantime -having been made for-a new trial, lie could resume the trial, sign the .findings and direct the entry of judgment. Such, however, is not the case. He is- designated for five years from October, 1905. Section 1010 of the Code of Civil Procedure provides;that if the" decision is riot filed in the clerk’s office within twenty days after the final adjournment of the term where the issue was tried, either party may move for a new trial on that ground, This section authorized the order appealed from. We thinlc, therefore, that as the trial justice had become disqualified to continue the trial, and the decision was not filed as required by section 1010 of the Code, there was a mistrial, and that the court at Special Term was right in directing that the action be sent to the Special Term for trial.

The counsel for the defendant insists, however, that the court should impose as a condition for such retrial that the case be retried upon the testimony taken on the former trial. If we had power to impose this condition, I should be in favor of imposing it, but I do not think that, either the Special Term or this court has such power. Section 3 of article 6 of the Constitution provides' that “ the testimony in equity cases shall be taken in like manner as in cases at law.” This being an equity case,, the testimony under this provision must be taken by the court that tries, the case in open court, and the court cannot compel the parties to submit the action 'to be tried by a judge upon the testimony taken before another judge. We think we have no power to compel upon the new trial the case to he tried- in other than the regular and orderly course, as if no trial had been had. '

It follows that the order appealed from must be affirmed, with ten dollars costs and disbursements.

O’Brien; P. J., Patterson and Laughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. Order filed. " '  