
    Harvey Murdock, Respondent, v. The International Tile & Trim Co., Appellant.
    (City Court of Brooklyn
    General Term,
    October, 1895.)
    A judge who settles, the form of judgment to be entered upon á referee’s report and grants an allowance is disqualified from taking any part in the appeal from such judgment.
    Disqualification of a judge cannot be waived by consent.
    Appeal from judgment in favor of the plaintiff, entered upon the report of a referee..
    
      Higley <& Ferguson and J. T. Marean, for appellant.
    
      Smith (& Martin, for respondent.
   Clement, Ch. J.

This case is an action in equity to foreclose a. mechanic’s lien, and was tried before a referee. The referee did not report the form of the judgment, and, therefore, it was settled by the court. The Constitution' provides that no judge shall sit in review of his own decision, and,technically, I am disqualified from taking' any part in this appeal, for the reason, that the form of the judgment was settled by me, and I granted an allowance. On the argument I suggested, that there was a doubt in my mind .on- this question, and the attorneys agreed to waive the point. .The disqualification of a judge cannot be waived, an^ if judgment is rendered by this General Term, the same, could he set aside on motion, for the. reasons ■ stated. Oakley v. Aspinwall, S . N. Y. 547.

A reargument is, therefore, "ordered.

Van Wyck and Osborne, JJ., concur.

Reargument ordered.  