I dissent and vote to reverse the determination of the Appellate Term upon the ground that, regardless of other questions, the proceedings which resulted in the order appealed from were conducted in violation of section 757 of the Judiciary Law and provisions of the Municipal Court Code. Section 750 of the Judiciary Law provides that “ a court of record ” has power to punish for a criminal contempt a person guilty of the acts therein specified. This is amplified by section 755, which provides for summary punishment by “ the court, judge, or referee ” where the offense is committed in the immediate view and presence of the court, judge or referee upon a trial or hearing. By section 757 of the Judiciary Law it is provided further that “ where the order to show cause, or the warrant, is returnable before the court,” “it must be made returnable at a term of the court, at which a contested motion may be heard.” (American Agricultural Chemical Co. v. Brooks, 167 App. Div. 936; Downey v. Fenn, 124 N. Y. Supp. 876; People ex rel. Geery v. Brennan, 45 Barb. 344, 347.) The distinction both in procedure and in the consequences was fully considered in Matter of Hanbury (160 App. Div. 662), where, even though the nature of the contempt was such that it could have been punished summarily (Judiciary Law, § 755), the proceeding was instituted by warrant of attachment. That decision was approved and fol*317lowed in Eastern C. S. Co. v. B. & M. P. I. U., Local No. 45 (200 App. Div. 714). Indeed, it is only in consequence of that distinction that we may entertain this appeal at all.
The order directing the appellant to show cause why he should not be punished for contempt is dated June 14, 1933. It is made by Hon. Thomas E. Murray, a justice of the Municipal Court, and the judge against whom the contempt is alleged to have been committed. It directs the appellant “ to show cause before me in the Municipal Court of the City of New York, Borough of Manhattan, Third District, Part I thereof,” why he should not be punished for contempt. The order which finds the appellant guilty of a criminal contempt and directs that he be committed is a court order made “ At a Term of the Municipal Court of the City of New York, held in and for the Borough of Manhattan, Third District,” held by Hon. Thomas E. Murray, Justice, although no particular part of that court is specified. It recites that by the order of June 14, 1933, the appellant was directed “ to show cause before the Municipal Court of the City of New York ” why he should not be punished for contempt of court. From this it is evident that the appellant was tried before the court and not before a judge thereof. (Cf. Matter of Rudd v. Hazard, 266 N. Y. 302.) Indeed the first and the last of the charges on which the appellant was found guilty of a criminal contempt were of such a character that they could only have been tried before the court. (People ex rel. Barnes v. Court of Sessions, 147 N. Y. 290; Judiciary Law, §§ 750, 755.)
Under these circumstances the appellant was entitled to insist that the matter be decided in the same way as any other contested motion. He duly objected to the power of the justice who presided at the trial to entertain the proceedings upon the ground that .his assignment at that time was to Part 13 of the Central Jury Part and not to any part of the Third District Municipal Court, where these proceedings were conducted. That fact was not only undisputed at the hearing but is established by the official assignments of the president justice of the Municipal Court, of which we cannot fail to take judicial notice, which show that for the month of January, 1934, there were established three parts of the Third District Municipal Court and that Justice Lazarus was assigned to Part I, Justice Abrams to Part II and Justice Shalleck to Part III. Section 7 (subdivisions 3 and 6) of the Municipal Court Code provides that the president justice, on or before December first in each year, shall establish for the ensuing year parts for the court and designate what part or parts shall be held in each district and assign justices to hold court in any district and in any part in any district. Section 10 of the Municipal Court Code expressly pro*318vides: “ Justices assigned by the president justice shall hold court in one or more parts as established and on such days as may be fixed by said president justice.”
Rule 2 of the Rules of the Municipal Court (effective March 30, 1933), enacted pursuant to section 8 of the Municipal Court Code, provides*. “ In a district where more than one Part has been established motions shall be returnable in Part 2 and disposed of by the justice there presiding. If for any reason Part 2 is not in session, or in a district where there is but one Part, the justice presiding in Part 1 shall make disposition of the motion calendar.”
The procedure which was followed, it seems to me, was in plain violation of those statutory provisions and of section 757 of the Judiciary Law, the very purpose of which was to require contempt proceedings to be heard in the same way as any other contested motion where the proceedings are not summary but are initiated by order to show cause or by warrant of attachment returnable before the court as distinguished from the judge. (Compare Cooke v. United States, 267 U. S. 517.) By the order to show cause of June 14, 1933, the appellant was directed to appear, not before any justice who might be assigned to hold any part of the Third District Municipal Court, but “ before me [Thomas E. Murray] in the Municipal Court of the City of New York, Borough of Manhattan, Third District, Part 1 thereof.” When, pursuant to that order, he appeared, he was tried before a judge who had not been assigned to hold any part of the Third District Municipal Court. What had happened, of course, was that Justice Murray, though assigned to the Central Jury Part, had, notwithstanding the statutes to which reference has been made, undertaken to assume control of these proceedings even though other justices had been regularly assigned to hold all the parts of the Third District Municipal Court and had occupied a court room in the Third District courthouse, to no part of which had he been assigned. This, quite obviously, is the reason the order appealed from does not disclose at which part of the Third District Court the proceedings were held. If it did, it would at once be revealed that another justice had been regularly assigned to that part, or that the proceedings were conducted at a part of the court never established in accordance with section 7 of the Municipal Court Code. If this procedure is to be tolerated, it is not difficult to imagine the confusion and the conflict that will result in the transaction of the business of the courts. Justices assigned to a Trial Term of the court may then, against the opposition of a litigant, hear and decide a matter returnable at a Special Term to which another justice has been assigned. In my opinion the statutes to which reference has been *319made expressly forbid what has been attempted here. A litigant is entitled to insist as a matter of right that a proceeding shall be heard by the justice who has been assigned to that part of the court where it is returnable or by another justice to whom it has been properly referred by him. Even conceding that Justice Murray, as a justice of the Municipal Court, had jurisdiction to hear this proceeding (Matter of Rosen, 240 App. Div. 955), his action constituted such a serious irregularity and such a violation of statute as to require the reversal of the order and that the proceeding be remitted to the Municipal Court to be heard by the justice duly assigned to hold that part of the court at which the order to show cause is returnable.
Here there were special reasons, not usually existing, for proceeding on the order to show cause in the same manner as in the case of any other contested motion. Indeed, considerations of propriety alone should have induced the judge, who was the victim of a personal attack on bis integrity, to refuse, rather than to seek, jurisdiction. We are concerned here with a situation where the conduct of the appellant was not disorderly and where the allegations of his affidavit, however warranted they may seem, were material on the motion for a new trial — so material that, if they were true, the motion could not have been denied. If they were true, then it seems obvious that the affiant would not have been guilty of contempt of court in making a motion which he had the right to make upon allegations of fact material to the issue presented for decision. The only possible theory on which he could be found guilty of contempt was that his allegations were intentionally false.
Under these conditions, was the judge, who had been the subject of this violent attack, the proper person to decide, without preconception or personal interest, whether the attack was justified and, if not, what the measure of punishment should be? To me it seems evident that a litigant demanding a new trial on such grounds ought not to be confronted with the danger of contempt proceedings prosecuted before the very judge against whom the accusations of misconduct have been made upon the theory that the accusations are not true. Otherwise motions for a new trial upon these grounds will be rare indeed no matter how justified they might be. It is hardly to be expected that one whose integrity has been assailed will, by acquitting the assailant, concede that the assault was justified. In saying this, I do not fdr an instant suggest that the allegations of the appellant’s affidavit in support of which no proof was offered by him, were in fact true. But it is only proper to add that the appellant, charged with contempt in making such allegations, *320was justified in believing that any attempt to vindicate himself by establishing their truthfulness to the satisfaction of the judge who was assailed, would be useless and would merely result in the infliction of heavier punishment. Consequently, even if the matter had regularly come before Justice Murray for decision, he should have referred it to another judge in accordance with the principle so accurately stated by Chief Justice Taft in Cooke v. United States (supra, at p. 539). In a matter so important in the administration of justice, the rights of litigants ought not to be subordinated to the sensibilities of the judge.
Indeed, we would be justified in holding that the disqualification of Judge Murray to sit in these proceedings was absolute under the decision in Wilcox v. Royal Arcanum (210 N. Y. 370). There it was decided that the members of the committee of a fraternal association were disqualified by a direct interest in the subject-matter of the controversy to act as judges in the trial of a member charged with making statements that members of the committee were guilty of graft and dishonesty. The disqualification of such a member was held to be analogous to that of a judge and consequently that the same statutory disqualification (Judiciary Law, § 15) applied to both. Since the truth of the accusations would have constituted a defense, the committee was held to be disqualified to try the charges to the same extent as would a judge. I quote at length from the opinion of the court, which seems to me fully to cover this aspect of the present case.
“ The rule that no man should be a judge in his own cause is so founded on common right and reason that both Lord Coke and Chief Justice Holt asserted the power to declare acts of Parliament repugnant to it void. [Bonham’s Case, 4 Coke, part 8, pp. 355, 382; City of London v. Wood, 12 Modern, 669, 688.] The important question in this case is, what interest will disqualify.”
Continuing, the court said: “ The general charge was of improper conduct, violative of his duties or of his obligation and unbecoming his profession as a member of the order. Undoubtedly it would injure the order temporarily at least, to accuse its officers of being ‘ grafters,’ but if the charge were well founded an impartial judge might conclude that it was made in the discharge of the highest duty to the order, and that the temporary injury resulting from the' exposé of wrongdoing was more than offset by the permanent good. It is no longer the law that the greater the truth the greater the libel. At any rate one of the issues'presented by the pleadings was the truth of the defamatory charges against the members of the supreme council, and of course the question of jurisdiction must be determined by the issues framed for trial, not by the evidence *321produced on the trial. It would seem plain that the trial committee had a direct interest in the determination of the question whether they themselves were grafters, unless the law places property above reputation. It is as though a judge defamed were to try the defamer for a criminal libel. While there is authority to support the view that he would not be disqualified in such a case (State v. Sutton, 74 Vt. 12; Clyma v. Kennedy, 64 Conn. 310), those cases appear to us to have been decided upon a too technical and narrow view of a rule, adopted by the common consent of mankind to insure impartiality and fair play. * * * It is shocking to one’s sense of fair play that persons defamed should be selected to try the defamatory charge, and it is sufficient for the purposes of this case to hold that they are disqualified by a direct interest in the subject-matter of the controversy.” (Italics mine.)
In the prevailing opinion it is said that these considerations are technical. I do not so regard them. On the contrary, I regard them as fundamental. But if they were technical it would furnish no answer to the objection that the action of the judge in hearing and deciding the contempt proceedings was an abuse of power exercised in violation of the statutes to which I have referred and to which no reference is made in the prevailing opinion of the court. In this State the Legislature has carefully limited the power to punish for contempt by statutory requirements, all of which must be observed before the power can be validly exercised. As to this, the court, in Rutherford v. Holmes (5 Hun, 317; affd., 66 N. Y. 368), said: “ The power which courts possess of punishing for contempts, and for refusal to give evidence, is, in its nature, an exception to the provisions of the Constitution. It is a power to deprive a man of his liberty, without a jury and without a regular trial. It cannot therefore be extended, in the least degree, beyond the limits which have been imposed by statute. No implication, and no fancied necessity, can be permitted to add to the literal meaning of the words by which the Legislature have restricted this power.”
The determination of the Appellate Term should be reversed and the proceeding remitted to the Municipal Court to be held by the justice duly assigned to hold that part of the court at which the order to show cause is returnable.
O’Malley, J., concurs.
Determination affirmed, with twenty dollars costs and disbursements.