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held by the court when the public interest requires it. The court may, by general rules, provide what causes shall have a preference on the calendar."
The amendment of 1852 was, substituting the last for the third Tuesday in September, as a time for commencing a term.
By the 13th rule, criminal causes are to have a preference, and may be moved on behalf of the people out of their order on the calendar. See court of appeals, rules in appendix.
14. [14.] (Amended 1849, 1851.) Judgment.-The concurrence of five judges is necessary to pronounce a judgment. If five do not concur, the case must be reheard.
But no more than two rehearings, shall be had, and if, on the second rehearing, five judges do not concur, the judgment shall be affirmed.
This section in the code of 1849, read as follows:
"The concurrence of five judges shall be necessary to pronounce a judgment. If five do not concur, the judgment or order appealed from shall be affirmed, unless the court order a rehearing." In the code of 1848, it read, "The concurrence of five judges shall be necessary to pronounce a judgment. If five do not concur, the appeal shall be reheard."
There was a doubt entertained whether this section, as it stood prior to the last amendment, was constitutional; but in Mason v. Jones (3 Coms. 375, 3 Code Rep. 164), the court of appeals said, we see no ground for saying the 14th section [of the code of 1849] is unconstitutional. It does no more than restore the common law as it had been previously understood and acted on in this State." By the former practice, upon an equal division of the court, the judgment below was affirmed; but it is well settled that such an affirmance merely determined the particular case, and left the questions involved in it open for consideration in any future case in which they might arise. Bridge v. Johnson, 5 Wend., 342. People v. Mayor &c. of New York City, 25 Wend., 252. In the case lastly cited, it was also decided that in cases where the court are equally divided, a rehearing cannot, in the absence of a statutory authority, be allowed; and the same was held in the supreme court of the United States. See Martin v. Hunter's Lessee, 1 Wheat., 355.
Where judgment is pronounced in open court holden by eight judges, without any dissent at the time, neither party can go behind such public act, and attack the judgment on the ground of what may have taken place among the judges in their private consultations. Mason v. Jones, 3 Coms., 375; 3 Code Rep., 164. See further, Oakley v. Aspinwall, 3 Coms., 547.
15. Sheriff to provide rooms.-If, at a term of the court of appeals, proper and convenient rooms, both for the consultation of the judges and the holding of the court, with furniture, attendants, fuel, lights, and stationery, suitable and sufficient for the transaction of its business, be not provided for it in the place where by law the court may be held, the court may order the sheriff of the county to make such provision, and the expense incurred by him in carrying the order into effect shall be a county charge.
§ 16. (Amended 1851.) Court, where held.--The court of appeals may be held in other buildings than those designated by law as places for holding courts, and at a different place in
the same city* from that at which it is appointed to be held.** Adjournment.-Any one or more of the judges may adjourn the court, with the like effect as if all were present.
The amendment to this section was the omission at the point where one asterisk is placed, of the words "or town;" and where two asterisks are placed, the words "and may in its discretion adjourn any term from the city or town where it is appointed to be held, to any other city or town," are omitted. And see, as to the terms of this court, laws of 1849, p. 484, c. 333, ss. 2, 3; and by laws of 1850, p. 45, chap. 41, it is enacted: Whenever any judge of the court of appeals, being a justice of the supreme court, shall be absent from the court, or there shall be a reason to believe that he will not attend, the governor shall designate some justice of the supreme court from the class of justices having the shortest time to serve, to supply the place of such absent judge; and such justice shall attend and be a judge of the court of appeals, until such absent judge, or some one duly qualified to take his place, shall attend the court. The last clause of section two, title one, chapter three, of the third part of the Revised Statutes (prohibiting judges from sitting or acting in certain cases), shall not apply to any judge of the court of appeals.
Of the Supreme Court,* Circuit Courts, and Courts of Oyer and Terminer.
SECTION 17. Existing statutory provisions, as to terms, &c., repealed. 18. General terms.
§ 17. [15.] (Amended 1849.) Existing statutory provisions as to terms, &c., repealed.—All statutes, now in force, provid
*The Supreme Court.-When the code became a law, the supreme court lost none of its chancery jurisdiction. It is true, the distinction between suits in equity and actions at law was abolished, but the suit in equity survived in the "civil action," per Gridley J., in Myers v. Rasback, 2 Code Rep., 13; 4 Pr. R., 83. Myers v. Borland, ib. See Supreme Court Rules in appendix. The jurisdiction of the supreme court and its justices is defined by the Constitution, Art. vi, Sec. 3-6; 2 R. S., 259, s. 1; ib., 234, s. 60; Laws of 1847, p. 323, s. 16; Laws of 1848, p. 282, cap. 170; Laws of 1849, p. 27, cap. 30; ib., p. 117, cap. 82; ib., p. 150, cap. 111; Laws of 1850, p. 20, cap. 15; Laws of 1850, p. 9, cap. 1. But, say the commissioners on practice and pleading: " to ascertain what the precise jurisdiction is, it is necessary to recur to the jurisdiction of the courts of queen's bench, common pleas, and exchequer, in England, on the common law side, and to that of the court of chancery, in that country, on the equity side, and to collate with them the various modifications which the constitution and statutes of this State have introduced." This court has also jurisdiction of all civil actions now undetermined, and which were pending in the late
ing for the designation of the times and places of holding the general and special terms of the supreme court, and the circuit courts, and courts of oyer and terminer, and of the judges who shall hold the same, are repealed, from and after the first day of July, one thousand eight hundred and forty-eight; and the order of the supreme court, adopted July fourteen, one thousand eight hundred and forty-seven, prescribing the times and places of holding the general and special terms of the court, and the
mayor's court of the city of Rochester on the 30th of April, 1849, and of all the proceedings incident to judgments rendered in that court in those actions on or before that day. Laws of 1849, p. 435, cap. 303, s. 5. By the 13th subdivision of section 30 of this code, actions in the county courts may in certain cases be transferred to the supreme court; and by section 33 of this code, actions in the superior court or in the court of common pleas for the city and county of New York, may in certain cases be transferred to the supreme court.
The judges of this court, although elected in districts, possess co-ordinate powers throughout the State. Const., art. vi., s. 6; and by laws of 1849, cap. 30, p. 27; any special powers and jurisdiction theretofore vested and existing in any vicechancellor or judge of the supreme court in any particular district or circuit prior to the first Monday in July, 1847, are transferred to, and vested in, any justice of the supreme court, elected for such district or districts, subject to an appeal to the supreme court: provided that nothing in that act shall limit or abridge the powers and jurisdiction of the supreme court, as defined by the code.
The constitution, art. xiv., s. 5, provides that on the first Monday of July, 1847, jurisdiction of "all suits and proceedings originally commenced and then pending in any court of common pleas," shall become vested in the supreme court. This section has been held to mean al! suits originally commenced in the old courts of common pleas, whether the same have proceeded to final judgment or not, provided any further judicial action is to be had therein. O'Maley v. Reese, 1 Barb. S. C. R., 643. See an act relating to the powers of the late court of chancery and supreme court in equity, as to assignments of real estate to receivers in pursuance of orders of such courts. Laws of 1851, cap. 163, p. 308.
The circuit courts.-By laws of 1847, page 326, section 22, it is enacted that these courts shall have the same powers, and exercise the same jurisdiction, as that possessed and exercised by the circuit courts then existing, so far as they were consistent with that act; and all laws relating to the former circuit courts were made applicable to the present circuit courts, so far as the same were consistent with that act. See further, 2 R. S., 40, 91, 112, 123, 128, 200, 208, 226, 266 to 272, 378, 481, 513, 698 to 721.
Hardly any step, except to try or refer, can be taken at the circuit in a cause pending in the supreme court. (2R. S., 201, s. 13, 383, s. 41; const. of 1821, art. v. s. 5; const. of 1846, art. vi. ss. 6, 9; jud. act of 1847, s. 22; code, s. 9, 10, 255.) Per Hand, J., in Mann v. Taylor, 1 Code Rep., N. S., 383. And except to grant a new trial on the judge's minutes. Ib.
The courts of oyer and terminer.-The jurisdiction of these courts is prescribed by 2 R. S., 270, 271, ss. 35, 36, 37, const., art. vi. s. 6, ib., art. xvi. s. 5, laws of 1847, p. 330, ss. 3, 39, ib., p. 332, s. 43; and by laws of 1849, p. 435, s. 6, jurisdiction was transferred to this court in the county of Monroe; and on the 30th of April, 1849, of all criminal acts and proceedings then pending in the late mayor's court of the city of Rochester, and of all proceedings incident to judgments rendered in that court in those actions and proceedings on or before that day.
The court of oyer and terminer in the city and county of New York may be held by one or more of the judges of the supreme court, or by either of the three judges of the court of common pleas of that city and county, together with the mayor, recorder, and aldermen of that city, or with any two of them. 2 R. S., 270, sec. 34, subd. 1. People v. White, 24 Wend., 543, 545.
circuit courts and courts of oyer and terminer, during the residue of the year one thousand eight hundred and forty-seven, and for the years one thousand eight hundred and forty-eight and one thousand eight hundred and forty-nine, and assigning the business and duties thereof to the several judges of the court, is, from and after the first day of July, one thousand eight hundred and forty-eight, abrogated, and the provisions of this title are substituted in place thereof.
§ 18. [16.] (Amended 1849.) General terms.-At least four general terms of the supreme court shall be held annually in each judicial district, and as many more as the judges in such district shall appoint, at such times and places as a majority of the judges of such district shall appoint.
By laws of 1849, cap. 82, s. 117, it is enacted that the then present general term of the supreme court appointed to be held in the city of Albany, and any future general term to be held in the same city, may be held at the capitol or the city hall, in the discretion of the judges holding such terms.
See note to sec. 20, infra.
§ 19. [17.] Judgment, how given.-The concurrence of a majority of the judges holding a general term, shall be necessary to pronounce a judgment. If a majority do not concur, the case shall be reheard.
§ 20. [18.] (Amended 1849.) Special terms, &c.—There shall be at least two terms of the circuit court and court of oyer and terminer held annually in each of the counties of this State, and as many more terms thereof, and as many special terms, as the judges of each judicial district shall appoint therein; but at least one special term shall be held annually in each of said counties. Fulton and Hamilton shall be considered one county for the purposes of this section.
Special terms were established by statute for the purpose of hearing and deciding, during the vacations intervening between the calendar terms, all such non-enumerated business as should arise in the court, except such as the court should direct to be heard in term. (Laws of 1830, p. 208, ss. 1, 2; 2 R. S., 124, ss. 9, 12.) The constitution, art. vi. sect. 6, prescribes by what justices the general and special terms shall be held, but "it leaves their powers to be prescribed by the legislature." Griffin v. Griffith, 6 Pr. R., 428.
The distinction between the power of the court at special and general terms was discussed in the case of Gracie v. Freeland, 1 Com., 228, and again in Mason v. Jones, 1 Code Rep., N. S., 338. In the latter case, Mitchell, J., in reviewing the case of Gracie v. Freeland, says: "Judge Bronson speaks as well of the special term as of the general term, as branches of the supreme court, and grounds his decision on the provision of the judiciary act of 1848, sec. 20, that all suits in equity should be first heard and determined at a special term of the supreme court, and that either party might then apply at a general term for a rehearing, and that this made it imperative on the general term to give it a rehearing, and that that rehear
ing differed from the technical rehearing in the court of chancery. Judge Gardiner, urging that there is a constitutional difference between the special and general terms, concludes that it consists in this, at least, that the decisions at the general term are the only final determination of the supreme court, while those of the special term are, in all cases affecting the merits, subject to review in the same court at a general term. This clearly recognizes that the special term is the supreme court as well as the general term, and, unless the law or the constitution point out a limit, it has the same powers. Thus appeals from a vice-chancellor to the chancellor were, under the judiciary act, noticed to be heard before the judge at special term, though generally sent by him, under the power contained in that act, to the general term.
"That branch of the court (the special term) now hears every question, except on appeal, that could come before the general term; questions as to the opening of streets, as to granting mandamus or certiorari, and has even quashed a certiorari allowed ex parte at the general term, and its decision was not appealed from.
"The sixteenth section of the judiciary act gives to the supreme court the same jurisdiction and power as were possessed or exercised by the former supreme court and court of chancery; that power and jurisdiction was given to the supreme court in general term; not more to it, when sitting at general term, than when sitting at special term, and wherever the supreme court was sitting as a court, whether at general or special term, there all those powers and jurisdictions were centered."
"The special term of this [supreme] court is a kind of court of chancery, having a most extensive equity jurisdiction. The old special term was restricted." Per Roosevelt, J., in Beach v. Gilhooly, (not reported.)
§ 21. [19.] (Amended 1849.) Circuit and oyer and terminer together.-Circuit courts, and courts of oyer and terminer, shall be held at the same places, and commenced on the same day.
See as to circuits, &c., in first judicial district, Supplemental Act, Title II., post.
§ 22. [23.] (Amended 1849.) Times and places of holding courts. The governor shall, on or before the first day of May, one thousand eight hundred and forty-eight, by appointment in writing, designate the times and places of holding the general and special terms, circuit courts, and courts of oyer and terminer, and the judges by whom they shall be held; which appointment shall take effect on the first day of July thereafter, and shall continue until the thirty-first day of December, one thousand eight hundred and forty-nine. The judges of the supreme court of each district, shall, in like manner, at least one month before the expiration of that time, appoint the times and places of holding those courts for two years, commencing on the first day of January, one thousand eight hundred and fifty, and so on, for every two succeeding years, in their respective districts.
This section is identical with section 23 of the code of 1848; and under that section the governor duly designated the time of holding the general and special terms, circuit courts, and courts of oyer and terminer, and the judges by whom they should be held; and the judges of the supreme court appointed the times and places of holding those courts, and by such designation and appointment a circuit court,