Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
[41 NJSuper Page 532] This is an appeal by defendants from a judgment for $4,000 in favor of the female plaintiff and for $657 in favor of her husband, in an action for personal injuries and consequential damages ensuing as a result of a fall caused by defendants' alleged negligence in maintaining a clubhouse. The action was instituted in the Superior Court, Mercer County, but was transferred for trial to the Mercer County District Court on grounds of probable non-excess of the recovery over the jurisdiction
of the county district court, as permitted by the statute. The case was tried without a jury.
Mrs. Wilson and her husband were members of the defendant country club, and the theory of her case is that she fell on June 18, 1953, when her spiked golf shoe caught in a torn carpet runner in the locker room of the club, improperly maintained by defendants, causing her to fall forward heavily on her hands and producing injuries to her arms and elbows. The extent of her injuries was seriously contested at the trial.
The first ground of appeal is that the trial judge was, unknown to defendants, disqualified to hear the case because of a relationship to plaintiffs within the prohibited degree specified by N.J.S. 2 A:15-49. The statute provides that no judge shall sit when he "is related in the third degree to any of the parties to the action, which degree shall be computed as at common law."
Clarity in the factual exposition requires naming the persons in the chain of relationship. A sister of the wife of Judge Vine, who presided at the trial, is Mrs. Sarah Sachs. She was previously married to Benjamin Wilson, deceased some time ago, and thereafter she remarried. The plaintiffs are daughter-in-law and son, respectively, of Isadore Wilson, brother of Benjamin.
A motion for a new trial by defendants raised, inter alia , this question of disqualification, but it was denied by the trial judge on the grounds that his relationship to plaintiffs was not within the prohibition of the statute and that the objection was required to have been raised prior to trial, under N.J.S. 2 A:15-50.
The first facet of the inquiry is whether the statute contemplates relationship by marriage as well as by blood. A consideration suggestive of a negative response is the statutory requirement that the degrees of kinship be "computed as at common law." At common law that computation was only in degrees of consanguineal connection. In
both the common and canon law, the degrees of lineal consanguinity are reckoned as one degree for each person in the line of descent, exclusive of him from whom the computation begins. The degrees between collaterals are found by taking the number from the common ancestor to either or to the more remote of them. 4 Kent's Commentaries (14 th ed. 1896), *413 ; "consanguinity," Webster's New International Dictionary (2 d ed.), p. 567; Vol. I, Bouvier's Law Dictionary (Rawle's Third Revision 1914), p. 818; Black's Law Dictionary (4 th ed. 1951), p. 511. By the civil law the computation was upward to the common ancestor and then downward to the other party, counting the degrees ascending and descending. Smith v. Gaines , 35 N.J. Eq. 65 (Ch. 1882), affirmed 36 N.J. Eq. 297 (E. & A. 1882); Schenck v. Vail , 24 N.J. Eq. 538 (E. & A. 1873). Thus, there being no evidence of strict recognition at common law of degrees of relationship to the kin of a spouse, the statute under consideration may seem not intended to disqualify for relationship by affinity, i.e. , by blood relation to one's spouse. Yet the strong public policy for impartial administration of justice implicit in the statute suggests a broader inquiry as to the scope of the legislative intent. "The ties of affinity are often stronger than those between collateral or even lineal kinsmen by blood." Bennett v. Van Riper , 47 N.J. Eq. 563, 566 (E. & A. 1890).
There is a wide scattering of authority recognizing relationship by affinity as effective for many legal purposes. 2 C.J.S., Affinity, page 991; Bennett v. Van Riper, supra; Graham v. Thompson , 174 Tenn. 278, 125 S.W. 2 d 133 (Sup. Ct. 1939); State v. Hooper , 140 Kan. 481, 37 P. 2 d 52 (Sup. Ct. 1934); Sizemore v. Commonwealth , 210 Ky. 637, 276 S.W. 524 (Ct. of App. 1925); Wimberly v. King , 179 So. 515 (Ct. of App. La. 1938); Marcus v. Leake , 4 Neb. Unof. 354, 94 N.W. 100 (Sup. Ct. 1903); O'Connell v. Powers , 291 Mass. 153, 197 N.E. 162 ...