Sherk v. Catena

235 A.D. 686

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1932
• Status: Published

Opinion

Judgment reversed on the law and the facts and a new trial granted, costs to abide the event. In our opinion the appellants did not have a fair retrial of the issues, inasmuch as the trial justice had, at the close of the first trial, stated that he did not believe the defendants or any of them, and at the close of the second trial stated: “ The retrial .-of this case only confirms the conviction that I had on the first trial that neither of the defendants is worthy of belief. They would both swear to anything.” It is obvious, from such statements, that the trial justice was biased and prejudiced against said defendants at the commencement of the second trial. Under the circumstances, we think they were entitled to have the case tried before another justice and that their motion to that effect should have been granted. We further find that the proofs upon the second trial were substantially the same as upon the first, and that the judgment holding the title to the premises in question to have been vested in Eugene P. Catena by virtue of the deed from his wife to him is against the weight of the credible evidence. Findings of fact inconsistent herewith and all conclusions of law are reversed. Young, Scudder, Tompkins and Davis, JJ., concur; Lazansky, P. J., concurs on the ground that the determination is against the weight of the evidence. Settle order on notice.