
    Fleming Stanhope Philips, Respondent, v. The Germania Bank, Appellant.
    (Argued October 4, 1887;
    decided October 18, 1887.)
    An ex pa/rte order was made by a justice of the Supreme Court for the. examination of one of defendant's officers before trial. Upon motion made before another justice on the papers on which the order was granted, and other affidavits and papers, the order was vacated. The justice who granted the first order was a member of the General Term which heard an appeal from the second order. Held, that as the first order was not under review by the General Term, the objection that the court, as constituted, was violative of the constitutional prohibition against a judge or justice sitting in General Term in review of a decision made by him was not tenable. (State Const., § 8, art. 6.)
   The following is the mem. of opinion in this action:

“ The defendant was a Massachusetts corporation and the plaintiff was in its employment under a contract whereby he was to- receive a share of its profits as compensation for'his services, and he commenced this action to recover his share of the profits. On the 18th day of March, 1887, Judge Van Brunt made an order under section 872 of the Code of Civil Procedure requiring Herman Stursburg, who was one of the directors and the treasurer of the defendant, to appear before him or'some other judge of the Supreme Court at chambers on the 28th day of March, 1887, for the purpose of being examined i: pursuant to the provisions of the Code of Civil Procedure in such cases made and provided.” Thereafter on the day named a motion was made on behalf of the defendant, before Judge Patterson at chambers, to vacate Judge Van Brunt’s order. That motion was based upon the papers upon which the order was granted and the affidavit of Stursberg and other papers, and after hearing counsel for both parties an order was granted vacating the order for the examination of Stursberg provided the defendant stipulated to allow an examination of its books, which stipulation was given. From that order plaintiff appealed to the General Term, and there the order of Judge Patterson was reversed and the order of Judge Van Brunt was reinstated, with, costs and disbursements ; and the examination of Stursberg under the first order was set down for the 15th day of August, 1887. The General Term was composed of Judges Van Brunt, Daniels and Bartlett, and Judge Van Brunt wrote the opinion. From the order of the General Term the defendant appealed to this court, and the point is now made, so far as the record appears for the first time, that the General Term was not properly constituted for the reason that Judge Van Brunt was a member thereof, and thus that section 8 of article 6 of the Constitution was violated, which provides that “ no judge or justice shall sit at a General Term of any court or in the Court of Appeals in review of a decision made by him or of any court of which he was at the time a sitting member.” The answer to this objection is that Judge Van Brunt’s order was not under review at the General Term, but the order of Judge Patterson was the subject of consideration. That order was not based upon the same papers that were presented to Judge Van Brunt, but upon additional papers ; Judge Patterson was not acting upon an appeal from Judge Van Brunt’s order, and was not strictly sitting in review of his order, but upon new papers he heard a motion to set it aside. That motion was a new and distinct proceeding, not a continuation of the proceeding commenced before Judge Van Brunt; The General Term had no occasion to determine whether the order granted ex parte by Judge Van Brunt was well granted or not. On the papers presented to him there could be no reasonable dispute that it was well granted. The question which the General Term had to determine was whether upon all the papers appearing before Judge Patterson he properly vacated the previous order, and we are therefore of opinion that it cannot be said that the General Term was in any proper sense sitting in review of the decision made by Judge Van Brunt.

Joseph A. Shoudy for appellant.

Lamed & Curtis for respondent.

“ Whether upon all the papers before the General Term there were sufficient facts to justify the examination of Stursberg under the section referred to rested in its discretion. The papers showing a formal compliance with the section, the exercise of its discretion is not reviewable here.

“ The appeal should therefore be dismissed.’

Earl, J.,

reads for dismissal of appeal.

All concur.

Appeal dismissed  