1900] Wittleder v. Citizens' Electric Illum. Co. herein by this court by omitting therefrom the word "unanimous." The appellant claims that it is entitled to have the or der so resettled for the following reasons: When the case was argued orally before this court, Mr. Justice Cullen was a member of it, and sat at the time when the oral argument was delivered. Mr. Justice Bartlett, also a member of the court, was absent, and did not hear the case orally argued. The other members of the court were presnt, and constituted, with Mr. Justice Cullen, a quorum. After the case was argued, and before its decision, Mr. Justice Cullen was designated by the governor of the state as an associate judge of the court of appeals, and, be ing disqualified by such designation, took no part in the decision of the case. In this condition it became necessary to order a reargument of the case before the court as presently constituted, or that Mr Justice Bartlett should participate in the decision, WHAT IS UNANIMOUS DECISION OF APPELLATE DIVISION,-continued. The above constitutional provision has been embodied in subdivision 4 of section 191 of the Code of Civil Procedure. The burden of showing that a decision of the appellate division is unanimous rests upon the party asserting it. Kaplan v. New York Biscuit Co., 151 N. Y. 171; 45 N. E. 353. Staff v. Loewer's Gabbrinus Brewing Co., 151 N. Y. 646; 45 N. E. 1134. Irlbacker v. Roth, 155 N. Y. 664; 49 N. E. 1099. Laidlaw v. Sage, 158 N. Y. 73; 52 N. E. 679. Thus in order to deprive the court of appeals of power to review a judg ment of affirmance in an action for a personal injury, the party claiming a unanimous decision must establish that fact, and in so doing recourse cannot be had to the opinion, but the same must apppear from the judgment or from a certificate of the court appearing in the record. Kaplan v. New York Biscuit Co., 151 N. Y. 171; 45 N. E. 353. So a motion to dismiss an appeal on the ground that the judgment below was unanimously affirmed is properly denied by reason of the fact that it does not appear, either by the judgment or order of the appellate division, that the decison of that court was unanimous. Irlbacker v. Roth, 155 N. Y. 664; 49 N. E. 1099. And the duty to establish the unanimity of the decision is in no way affected by section 1337 of the Code of Civil Procedure providing that where the justices of the appellate division from which the appeal is taken are as necessary for a legal determination. The latter course was adopted, the cause was decided, and the order made which it is now asked we should resettle. It is claimed that, as Mr. Justice Cullen did not participate in the decision, and as Mr. Justice Bartlett did not hear the oral argument, there was no unanimous decision of the appeal. If it was proper to decide this case at all as the court was constituted after the retirement of Mr. Justice Cullen, and if it could make a legal determination of the case, it must follow that it could also make a unanimous determination. Really the only question involved is whether it was competent for Mr. Justice Bartlett to participate in the decision; because, if it was competent, then the court making the decision constituted a quorum of its members, and their unanimous determination made it the determination of the court. Harroun v. Brush Electric Light Co. 152 N. Y. 212; 46 N. E. 291; 38 L. R. A. 615. Mr. Justice Cullen's presence and participation were not essential to work this result, for, if he had still remained a member of the court, he might have declined to vote, or he might, by accident or death, have been prevented from voting; but, if a quorum still existed, which could render a decision, the determination made, all the other members of the court concurring, constituted a unanimous determination. Upon the organization of the court of appeals under the constitution of 1846 the question was raised as to the right of a mem WHAT IS UNANIMOUS DECISION OF APPELLATE DIVISION,-continued. divided as to whether there is evidence supporting or tending to support a finding or verdict not directed by the court a question for review is presented. Laidlaw v. Sage, 158 N. Y. 73; 52 N. E. 679. It is a judgment of affirmance, within the meaning of subdivision 2 of section 191 of the Code of Civil Procedure which prohibits appeals as of right to the court of appeals from a judgment of affirmance in certain specified action when the decision of the appellate division is unanimous, where a judgment is entered upon an order of the appellate division, overruling exceptions directed to be heard by it in the first instance, denying the motion for a new trial based thereon, and ordering judgment upon the verdict.. Huda v. American Glucose Co., 151 N. Y. 549; 45 N. E. 942. 1900] Wittleder v. Citizens' Electric Illum. Co. ber of that court to sit in review of the determination of a cause made by the judge in the supreme court, and it was held that authority existed in the judge to sit in review of such determination. Pierce v. Delamater, 1 N. Y. 17. This was followed by other decisions to the same effect. Oakley v. Aspinwall, 3 N. Y. 547; Fry v. Bennett, 28 N. Y. 324. In the Oakley Case the question arose as to the authority of the court to make a determination of a question by less than the full number of all the judges, but, the legislature having provided that six should constitute a quorum, it was held that a majority of that number was sufficient to render a decision. These cases discuss, what is readily apparent, the necessity of conferring power upon a majority of a quorum to legally determine the question. Where a quorum of a court is constituted, and it unanimously determines what it has the legal right to determine, such act has the same force and effect, and becomes and is the act of the whole body. The right of a judge in the court of appeals to sit in review of his own decision was conferred by the constitution, and so continued until the amendments to that instrument, which took ef fect in 1870, when the rule was changed, and the judges sitting in the general terms and the court of appeals were prohibited from reviewing the determination of decisions made by them below. Real v. People, 42 N. Y. 270; Pistor v. Hatfield, 46 N. Y. 249. We have cited these cases for the purpose of showing that, where the duty is devolved upon a judge who is appointed in an appellate tribunal of determining the questions submitted to that court for determination, he is required by law to perform the same, and, in the absence of some prohibition, either constitutional or statutory, his duty is to participate in the decisions of the tribunal of which he is a member. It was held in Corning v. Slosson, 16 N. Y. 294, that a judge sitting at general term, who had not heard the argument of the cause, was competent to sit with two others who heard it, for the purpose of constituting a quorum. In that case, however, the judge took no part in the decision, and subsequent decisions seem to indicate that it would have been error for him so to do. Shaw v. People, 3 Hun, 272; Parrott v. Knickerbocker Ice Co. 38 How. Pr. 508. But we are inclined to the view that prior to the amendment of the constitution in 1870 a judge might have participated in a decision in which he did not hear the argument, based upon the authority and reasons already assigned. But, however this may be, and assuming that he would not have been so authorized, yet, in view of the present state of the law, we are clearly of the opinion that this authority is conferred. Section 46 of the Code of Civil Procedure, as adopted in 1876, provided, among other things, that a judge other than a judge of the court of appeals should not decide or take part in the decision of a question argued orally in the court, when he was not present, and sitting therein as a judge. This language is prohibitory of such authority if it had before existed, as it, in effect, says that no judge except a judge of the court of appeals shall participate in the determination of a question where he has not heard the oral argument. This prohibition continued until 1897, when this section of the Code was amended so as to read: "A judge other than a judge of the court of appeals, or of the appellate division of the supreme court, shall not decide or take part in the decision of a question which was argued orally in the court, when he was not present and sitting therein as a judge." Laws 1897, c. 268. We have, therefore, this result: Assuming that Mr. Justice Bartlett could not have participated in this decision, yet he was authorized to sit in order to constitute a quorum; and, with a quorum established, a decision could be rendered; and, as there was no dissent, and the remaining members of the court had authority to decide, and were unanimous in their decision, such decision operates as a unanimous decision of the court. If, however, we should be wrong in this view, the statute as now amended clearly confers authority upon a justice of this court to participate in a decision rendered by it, even though he did not hear the oral argument. This is expressly conferred by the amendment to the Code in 1897, and the same rule is made applicable to this court as it theretofore existed in the court of appeals. It is clear, therefore, that Mr. Justice Bartlett was not 1900] Wittleder v. Citizens' Electric Illum. Co. only present, and that a quorum existed, but that he was author ized to participate in the decision which was rendered, by express authority of law, even though he did not hear the oral ar gument. Such participation made the decision of this court a unanimous decision, in consequence of which the order correctly recites such fact. If this court, in its decision of the appeal, has committed an error which entitles the party to a reargument of the case, instead of a motion to resettle the order, it should ask permission to reargue it. It follows that the motion should be denied. All concur, except HIRSCHBERG, J., who takes no part. |