(184 N.Y.S.) the fact that the defendant has not presented the question to the court until 16 years after the marriage, and only now, when his wife asks for an absolute divorce on the ground of adultery. [2] But it must be determined solely upon a construction of subdivision 3 in paragraph 5, article 2, of the Domestic Relations Law, constituting chapter 14 of the Consolidated Laws of the state of New York. Paragraph 5 provides that a marriage is incestuous and void between either (1) an ancestor and a descendant; (2) a brother and sister of either the whole or the half blood; (3) an uncle and niece or an aunt and nephew. The defendant contends that the third subdivision applies to an uncle and niece of the whole or half blood, and the plaintiff insists that no additional words can now be added to that subdivision so as to broaden its meaning. This third subdivision, including uncles and nieces within the prohibited degrees, was added to the statute in the year 1893 (Laws 1893, c. 601). No case in the courts of this state has been called to my attention construing this subdivision. The cases cited from other states are based upon the wording and phrasing of the statutes of those states and should not be controlling in this case. When the original statute, section 5 of the Domestic Relations Law, was enacted, it contained only the prohibition against marriage between ancestor and descendant and between brother and sister of the whole or half blood. With this prohibition of marriage between brothers and sisters of the whole and half blood before them, the Legislature in 1893 added a third prohibition, namely, marriage between uncle and niece or aunt and nephew, and made this the third subdivision of paragraph 5. A disregard of the provisions of paragraph 5 subjects the parties to a fine and imprisonment as well. The omission of the term ""half blood" in this third subdivision plainly shows. that they were not to be included. Since the Legislature considered. it necessary to include the half blood specifically in subdivision 2 relating to brothers and sisters, their failure to do it in enacting the third subdivision, referring to uncles and nieces, makes it evident that the prohibition was not to extend to the half blood. In construing this addition to the statute in 1893, we do not consider what legislation along those lines should be enacted, but simply the legal effect of such prohibitions as have been already placed upon the statute books. The motion of the defendant for judgment on the pleadings is therefore denied. (Supreme Court, Appellate Division, Third Department. September 8, 1920.) 1. Discovery30-Surrogate can order preliminary examination of proponent of will. Under Code Civ. Proc. § 2770, extending to surrogate proceedings general rules of practice, the surrogate, in view of sections 872, 873, can order examination before trial of proponent of a contested will. 2. Discovery 32-Ordered where moving papers comply with statute. It is the established rule that a party is entitled as a matter of law to an order of examination of adverse party before trial, where the moving papers comply with the statute. Appeal from Surrogate's Court, Clinton County. In the matter of the probate of the will of Eliza A. Carter, deceased. From an order of the surrogate, denying application of Fannie N. Brown, contestant, for an order directing William C. Pike, the proponent and executor, to appear and be examined pursuant to Code Civ. Proc. §§ 872, 873, contestant appeals. Reversed and remanded. See, also, 193 App. Div. 356, 184 N. Y. Supp. 40. Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ. Patrick J. Tierney, of Plattsburg, for appellant. WOODWARD, J. It is clear, from a reading of the opinion of the learned surrogate in disposing of this motion, that he would have granted the contestant a measure of the relief asked, if he had not felt that he was controlled by the decision of the court in People ex rel. Lewis v. Fowler, 189 App. Div. 335, 178 N. Y. Supp. 500. While the order involved in that case has since been affirmed in the Court of Appeals (229 N. Y. 84, 127 N. E. 793), the discussion of the court practically overrules the decision made as to the question of power, and holds that under the provisions of section 2770 of the Code of Civil Procedure the surrogate is authorized to grant the same rights which are provided in the sections of the Code invoked by the appellant. The modern rule is quite liberal in granting the right to examine a party before trial. It is now the established doctrine that "Where the moving papers comply with the statute the party is entitled to the order as a matter of law." Whitley v. Speed, 171 App. Div. 102, 104, 156 N. Y. Supp. 973, 975, and authorities there cited. Without determining at this time how far the moving papers comply with the statute, or assuming to determine what, if any, relief should be granted the appellant, we are of the opinion that the order appealed from should be reversed, and the matter returned to the surrogate for such action as may be justified upon a consideration of the merits of the application. The order appealed from should be reversed, and the matter remanded to the surrogate for his further consideration. All concur. Order reversed, and proceeding remanded to the surrogate for his further consideration, with costs payable out of the estate. (193 App. Div. 356) In re CARTER'S WILL. (Supreme Court, Appellate Division, Third Department. September 8, 1920.) 1. Judges 51 (1)—Surrogate cannot be compelled to file certificate of disqualification. The clause of Code Civ. Proc. § 2476, providing that the surrogate is also disqualified in any matter in his court where he files a certificate that his relations to the parties or to the subject-matter are such that it is improper for him to act, merely enables him to decline to act, and does not empower the parties to compel him to file such certificate. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (184 N.Y.S.) 2. Judges 42-Surrogate not required to file certificate of disqualification where interested. Under Code Civ. Proc. § 2476, in view of Judiciary Law, § 15, a surrogate, if "interested," is disqualified by law to act, and there is no occasion for his making a certificate of disqualification. 53—Objection to disqualification of surrogate waived by party 3. Judges joining issue. Under Code Civ. Proc. § 2477, a party by first joining issue waives objection to power of a surrogate to act, based on a disqualification. Appeal from Surrogate's Court, Clinton County. In the matter of the will of Eliza A. Carter, deceased. From an order of the surrogate, denying motion of Fannie N. Brown, contestant, for a certificate of disqualification of the surrogate to preside at the trial of the issues in the proceedings, said contestant appeals. Affirmed. See, also, 193 App. Div. 355, 184 N. Y. Supp. 39. Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ. Patrick J. Tierney, of Plattsburgh, for appellant. John H. Booth, of Plattsburgh, for respondent Pike. Weeds, Conway & Cotter, of Plattsburgh (Frank E. Smith, of New York City, of counsel), for respondent Gregg. WOODWARD, J. This proceeding is for the probate of a will, and Fannie N. Brown is opposing the probate, as the only heir at law and next of kin of the testatrix, on the ground of undue influence and fraud. The immediate question involved in this appeal is the denial of a motion made by the contestant for a certificate of disqualification of the surrogate of Clinton county, under the provisions of section 2476 of the Code of Civil Procedure. The Code provision is that "In addition to his general disqualifications as a judicial officer, a surrogate is disqualified from acting upon an application for probate of a will, where he is a subscribing witness, or is necessarily examined or to be examined as a witness." That is, upon an application for the probate of a will, the surrogate may not act if his relation to the subject-matter-the drafting or execution of the will-is such as to make it improper for him to pass judicially upon his own acts. To this specific limitation upon his powers, which depends upon facts which must appear upon the face of the will, or upon the proceeding as a matter of record, the Legislature has added the provision that "a surrogate is also disqualified in any matter in his court where he files a certificate that his relations to the parties or to the subject-matter are such that it is improper for him to act." [1] It is under this last clause that the contestant seeks to review the refusal of the surrogate to issue a certificate of disqualification, and it seems to us clear that, in the absence of facts which disqualify him under the statutes, the question is one exclusively for the surrogate to determine. The revisers' note to this provision says that— For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes "The new matter is added because the relation of the surrogate to persons doing business in his court, and to the subject-matter, especially where he is allowed to practice, is often such that he ought not to be obliged to act." The Court of Appeals, in Pierce v. Delamater, 1 N. Y. 17, laid down the broad proposition that, where a right to sit in a judicial tribunal existed, it was the duty of a judge to act, even in the review of his own decisions. See Oakley v. Aspinwall, 3 N. Y. 547; Fry v. Bennett, 28 N. Y. 324; Wittleder v. Citizens' Electric Illuminating Co., 47 App. Div. 543, 545, 62 N. Y. Supp. 488. This was subsequently changed by a revision of the Constitution, in so far as the appellate courts are concerned (Const. 1869, art. 6, § 8; Const. 1894, art. 6, § 3); but the general rule undoubtedly remains that where a duty is devolved upon a judicial officer, in the absence of some prohibition, constitutional or statutory, he is bound to act. In the very recent case of Evans v. Gore, 253 U. S. 245, 40 Sup. Ct. 550, 64 L. Ed. —, the United States Supreme Court was called upon to review a judgment which in its effect determined the rights of the justices of that court to their salaries, undiminished by the income tax laws of the United States, and the court, while recognizing the embarrassment, declared that it was its duty to act, that "jurisdiction of the present case cannot be declined nor renounced," and the court held the act of Congress unconstitutional, in so far as it operated to decrease the compensation fixed by law for federal judicial officers. See Revenue Act 1918 (40 Stat. 1065) § 213 (U. S. Comp. St. Ann. Supp. 1919, § 6336ff). It was the purpose of the new matter, above set out, not to arm litigants with a power over the independence and integrity of the court, but to enable the surrogate, in a proper case, to decline to act without a violation of duty to the state. If it were open to contestants before the surrogate to inquire into the conduct of the surrogate through the variety of activities which this officer must pass in a rural county, and to make this inquiry the subject of review in the appellate courts, far greater harm would come to the orderly administration of the law than would be possible from an individual case of lack of delicacy on the part of the surrogate. We do not mean to suggest, in the present case, that there was any lack of proper judicial delicacy. Indeed, the informal suggestion made to the surrogate that it was improper for him to act, accompanied by an implied threat to make it the subject of formal action, seems to us to be open to very grave objections. The power to disqualify was given to the surrogate, not to litigating parties, and the reasons given by the appellant for demanding such a certificate are so trifling that it is difficult to believe they are made in good faith and for the promotion of justice. [2] The first suggestion, that the surrogate should give the certificate because, as a member of the Mohawk & Hudson River Humane Society, a legatee, he was interested in the subject-matter, does not require any certificate if he is interested within the contemplation of law. Under the provisions of section 15 of the Judiciary Law (Consol. Laws, c. 30), as amended by Laws 1917, c. 28, if the judicial officer is "interested," he is disqualified by law. Oakley v. Aspinwall, 3 N. Y. 547, 550, 551. There is no occasion for the surrogate to make a certificate where the law affords absolute protection. Of course the alleged (184 N.Y.S.) interest in this case is not so direct and substantial as to bring it within any of the decisions. People v. Edmonds, 15 Barb. 529. It may well be doubted if we may know from the record that the surrogate is in fact a member of this charitable organization. If he is, no individual right is involved in the probate of this will, and it is not within the letter or spirit of the statute which is here invoked., The other suggestions are equally untenable. There is no law, and no recognized public policy, which forbids a surrogate to be on good terms with the attorneys practicing in his court, or which stand in the way of his accepting references at the suggestion and with the acquiescence of all of the attorneys in a given proceeding. It may be conceded that there are often ethical considerations involved which might well engage the attention of the Legislature and of the bar and the courts; but they have no proper place in the consideration of a purely discretionary power granted to the surrogate to relieve him from the positive duty of acting where he was not disqualified by statute. Generally speaking, it is his duty to act in all matters brought before him properly. The statute makes certain exceptions, and then, to meet the peculiar conditions surrounding the office of surrogate, it is provided that he may make a certificate which shall operate to disqualify him; but, until he does make such a certificate, the duty is imperative, and this court has no power, at the suggestion of litigants, to compel the making of a disqualifying certificate. The order appealed from should be affirmed, with costs, Order unanimously attirmed, with costs. KILEY; J. To the proper, efficient, and beneficial administration of justice, two features should always be present: First, that the litigant gets a fair trial; and, second, which is quite as essential, that he or she shall think and believe that a fair trial of the issues presented has been had. This is a companion appeal of the one from an order of the same surrogate (193 App. Div. 355, 184 N. Y. Supp. 39) denying contestant's application to examine a witness before trial. The two appeals were argued together, and necessarily examined together, in connection with the consideration of the questions here involved. This record shows close and intimate relations between the attorney for the proponent and the surrogate, so much so that the learned surrogate acted for him as referee in a matter where a claim against an estate and the construction of a will over which his court had jurisdiction were involved. These circumstances have never passed unnoticed by our appellate courts. The strongest evidence which prompts an irresistible inference that the learned surrogate is biased in favor of the proponent is founded on the fact that, in face of what this record. shows, he persists in exercising his discretion in his own favor and determines to preside at the trial of the issues made by contestant's objections. The suggestion is ventured that few stronger cases, from an ethical, if not from legal, standpoint, could be conceived for the granting of a 1 Prepared before receiving Judge Woodward's opinion. |