
    GASSON v. ATKINS.
    (59 Misc. Rep. 145.)
    (Ulster County Court.
    April, 1908.)
    1. Judges—Disqualification—Proof op Grounds.
    Under a city charter the recorder was given power to act as city judge during any illness oí the latter, or his absence or disqualification. Held, that the facts giving the recorder authority to act must be proven, on motion to dismiss for want of jurisdiction.
    2. Same.
    On the return day of a summons issued by a recorder acting as city judge, defendant moved to dismiss oh the ground that the judge was not disqualified. Held, that the plaintiff must show affirmatively the existence of the facts giving the recorder power to act in the event of the absence or disqualification of the judge.
    Appeal from City Court of Kingston.
    Action by John J. Gasson against Dubois G. Atkins to recover for services rendered. Judgment for plaintiff, and defendant appeals.
    Reversed.
    A. D. Van Burén, for appellant.
    N. Frank O’Reilly, for respondent.
   CANTINE, J.

The summons in this action was issued by the recorder as acting city judge. Under the charter of the city of Kingston the recorder is given the power to act as city judge in case of the larter’s illness, absence from the city, or relationship to the parties with; in the prohibited degree. The power to act is, therefore, dependent upon the existence of one or more of the above facts, which must be proved, as any other facts, by competent evidence. The recorder has no right to assume that the city judge is under any of the prescribed disabilities, or to base his power to act upon mere rumor, surmise, or unsworn statements.

Upon the return day the defendant, appearing specially, moved to dismiss the complaint upon the ground that the city judge was not disqualified. This motion was denied. When the motion was made,, there was no presumption that the city judge was disqualified. It then became the duty of the plaintiff to show affirmatively the facts upon which the power of the recorder to act depended. The return contains no evidence upon this subject. The denial of this motion was therefore error, which requires a reversal of the judgment. Under section 3063 of the Code of Civil Procedure, as construed in the case of Markel v. Gummer, 84 App. Div. 634, 82 N. Y. Supp. 1107, this court has only power to order a new trial when the judgment is contrary to or against the weight of evidence. Therefore the reversal must be absolute, with costs.

Judgment reversed, with costs.  