I am unable to concur in the opinion of Presiding Justice Martin in which he sustains the first and second charges against Magistrate Capshaw, which, in substance, allege that he acted upon considerations outside the evidence presented in discharging the defendant in the Klein and Silverstein cases. I concur in the result only because I consider that, as a witness in the case of People v. Hines, Magistrate Capshaw, wholly without justification, in effect charged the arresting officers with giving false evidence and with unworthy motives in the performance of their duty.
*486In our consideration of the case we must disregard the evidence in People v. Hines except such testimony as was given by Magistrate Capshaw in that case. This requires that we exclude from consideration as evidence of wrongdoing by the magistrate the testimony of Weinberg and Davis given at the Hines trial which was incorporated in questions directed to Magistrate Capshaw and denied by him. Magistrate Capshaw ought not to be prejudiced by any evidence given by witnesses other than himself in a proceeding to which he was not a party and in which he could not have asked a question on cross-examination nor called a witness in denial of accusations against him. (Matter of Lynch, 227 App. Div. 477.) That principle is not a mere technicality but involves a most fundamental right. (Matter of Greenebaum v. Bingham, 201 N. Y. 343, 347.) So the referee has correctly held in his report.
Disregarding, then, the testimony of Weinberg and Davis, I am unable to agree that the proceedings in the Klein and Silverstein cases, read in connection with all the other evidence, require the conclusion that the magistrate was influenced by extraneous considerations. Upon the evidence that is a possible, but it is by no means a necessary, inference, especially if due weight be given to his long record of public service and his excellent reputation. Though I do not at all agree with his disposition of those cases, I find no cause for removal on that account. It is entirely reasonable to believe that the action of Magistrate Capshaw was the result of a misconception of the facts or the law, caused, it may be, by the summary manner in which such proceedings are conducted in the Magistrates’ Courts or by the confusion which seems then to have prevailed concerning the law relating to constructive possession of policy slips. For errors such as these, however manifest, the remedy is the reversal of the judgment, not removal of the judge. (Matter of Baker, 94 App. Div. 278; Matter of Tighe, 97 id. 28.) When, however, in undertaking to vindicate these decisions as a witness in People v. Hines, the magistrate asserted that he regarded the evidence of the arresting officers in those cases as unworthy of belief on account of testimony which, without justification, he claimed to be inconsistent and incredible, and when, likewise without justification, he suggested that the arresting officers in the Silver-stein case had acted in collusion with the defendant in making the arrest, he far exceeded the .limits which were permissible in attempting his own exoneration. I am constrained, therefore, to concur in the result on the ground that the third charge in part, at least, is sustained.
O’Malley, J., concurs.
Respondent removed from office.