
    Joseph J. Jermyn, Respondent, v. Frederick F. Searing and Others, Defendants, Impleaded with Empire Trust Company, Appellant.
    First Department.,
    February 20, 1914.
    Supreme Court — appointment of justice as ambassador to foreign country—“disability” under section 997 of the Code of Civil Procedure — motion for order determining manner of settlement of case on appeal.
    Where a justice of the Supreme Court accepts an appointment as ambassador to a foreign country and leaves the jurisdiction, a case of “ disability” arises under section 997 of the Code of Civil Procedure, which provides that under such circumstances the ease on appeal from a judgment rendered after the trial of an issue of fact by him shall be settled as the court directs.
    A motion by a defendant for an order directing in what manner a case on appeal shall be settled and signed under such circumstances should not be made until after the service of proposed amendments by the plaintiff.
    Appeal by the defendant, Empire Trust Company, 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 3d day of November, 1913, directing in what manner the case on appeal herein shall be settled and signed.
    
      William D. Guthrie of counsel [Thomas F. Gilroy, Jr., and Abraham Tulin with him on the brief], for the appellant.
    
      Montgomery Hare of counsel [Effingham N. Dodge with him on the brief], for the respondent.
   Clarke, J.:

This was an equity action tried before Mr. Justice Gerard, and a judgment was entered in favor of the plaintiff on June 30, 1913. The defendant Empire Trust Company has appealed from said judgment and served its proposed case on appeal on October 17, 1913. The time for the plaintiff to serve proposed amendments had not expired when this motion was made. After the entry of judgment Mr. Justice Gerard resigned from the bench and accepted the appointment of American ambassador to the German empire and is now residing in the city of Berlin exercising his official functions.

Upon this state of facts appellant made a motion for an order directing in what manner the case on appeal herein should be settled and signed. Section 25 of the Code of Civil Procedure provides: “After a judge is out of office he may settle a case or exceptions, or make any return of proceedings, had before him while he was in office, and may be compelled so to do by the court in which the action or special proceeding is pending.”

The usefulness of an order or judgment of the court depends upon the power to enforce its obedience. It is obvious that the American ambassador to Germany while performing his duties at Berlin cannot be “ compelled ” to perform an act by process of this court.

Section 997 of the Code of Civil Procedure provides: “When a party intends to appeal from a judgment, rendered after the trial of an issue of fact, or to move for a new trial' of such an issue, he must, except as otherwise prescribed by law, make a case and procure the same to be settled and signed by the judge, justice or the referee by or before whom the action was tried as prescribed in the General Eules of Practice; or, in a case of the death or disability of the judge, justice or referee, in such manner as the court directs.”

Upon the termination of the term of office of a judge, while his general judicial powers and jurisdiction cease eo instanti, yet, by the provisions of section 25 of the Code of Civil Procedure, supra, his judicial power limited to the settlement of a case upon appeal is expressly preserved. Therefore, he comes within the provisions of section 997 of the Code of Civil Procedure, supra, and in the event of disability, the case on appeal is to be settled in such manner as the court directs.

When Ambassador Gerard accepted his appointment from the United States government, left the jurisdiction and took up his abode abroad for .an indefinite period under that appointment, a case of disability contemplated by section 997 arose. Litigants may not have their substantial rights jeopardized or delayed by the voluntary action of a former justice. They are not to be compelled to follow him wherever he may be called by duty or pleasure over the known world, nor is the court to be left helpless to enforce its order.

We are of' the opinion that the motion was prematurely made, because before the proposed amendments to the proposed case on appeal were served it was impossible to determine whether any and if so how serious a controversy would arise between the parties. When that situation develops an application may be renewed to the Special Term for settlement in such manner as it may direct, either before the justice there presiding, or, if necessary, a referee may be appointed.

The order appealed from is, therefore, reversed without prejudice to such further motion, as indicated, as may be determined upon, and, under the circumstances, without costs to either party.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Order reversed, without costs, without prejudice to such further motion as indicated in opinion as may be determined upon. Order to be settled on notice.  