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court of oyer and terminer, and special term was to be held in and for the county of Greene on the third Monday of June, 1849, by Mr. Justice Paige. By an act passed 20th May, 1849 (Laws of 1849, p. 150), the justices of the supreme court assigned to hold the circuit court and court of oyer and terminer in the counties of Greene, Ulster, and Schoharie, were authorized to change the time for holding the same for the year 1849. In pursuance of this act, Justice Paige directed that the circuit court and court of oyer and terminer for the county of Greene, should be held on the 4th instead of the 3d Monday in June, as had been provided under the code. Justice Paige accordingly held a circuit court on the fourth Monday in June, and at such court made an order, which purported to be made at, and was entitled as of, a special term, held at, &c., on the 27th of June, 1849 (the Wednesday after the fourth Monday in June). On motion, the court, at a general term, set aside the said order, on the ground that Justice Paige had no power to change the time for holding the special term, and that no special term was legally held at the time the order was made. Bedell v. Powell, 3 Code Rep., 61.
§ 23. [24.] Extraordinary terms, &c.-The governor may also appoint extraordinary general and special terms, circuit courts, and courts of oyer and terminer, whenever, in his judgment, the public good shall require it.
By Laws of 1850, p. 9, cap. 1, it is enacted, that whenever, from any cause, any general or special term of the supreme court, or any circuit court, or court of oyer and terminer, duly appointed, shall be in danger of failing, it shall be the duty of the Governor to designate some justice or justices of said supreme court, who shall hold said courts respectively.
And by Laws of 1850, p. 20, cap. 15, it is enacted, that whenever an action in the supreme court cannot be brought to argument and decision in the district where the same is pending, by reason of the justices of such district, or any of them, having been employed as counsel, or being interested therein, or of kin to the parties or any of them, the court may, upon special motion, order such action to be brought to argument in any adjoining district to be specified in such order; and then such cause shall be heard and decided in such district.
See section 459 of this code.
§ 24. [25.] (Amended 1849, 1851.) Terms, &c. Where held. Adjournments.-The places appointed within the several counties, for holding the general and special terms, circuit courts and courts of oyer and terminer, shall be those designated by statute for holding county or circuit courts. If a room for holding the court in such place shall not be provided by the supervisors, it may be held in any room provided for that purpose by the sheriff, as prescribed by section twenty-eight.
General and special terms of the supreme or county courts and circuit courts and courts of oyer and terminer, may be adjourned to be held on any future day, by an entry to be made in the minutes of the court; and juries may be drawn and summoned for an adjourned circuit or county court, or an adjourned court of oyer and terminer, and causes may be noticed for trial at an adjourned circuit or county court, in the same manner as if such courts were held by original appointment.
See note to section 18.
§ 25. [26.] Publication of appointment.-Every appointment so made, shall be immediately transmitted to the secretary of state, who shall cause it to be published in the newspaper, printed at Albany, in which legal notices are required to be inserted, at least once in each week, for three weeks before the holding of any court in pursuance thereof. The expense of the publication shall be paid out of the treasury of the State.
§ 26. [28.] Inability of judge.-In case of the inability, for any cause, of a judge assigned for that purpose, to hold a special term or circuit court, or sit at a general term, or preside at a court of oyer and terminer, any other judge may do so.
See note to section 23.
§ 27. [30.] (Amended 1849.) Business out of court.—The judges shall, at all reasonable times, when not engaged in holding court, transact such other business as may be done out of court. Every proceeding commenced before one of the judges, in the first judicial district, may be continued before another, with the same effect as if commenced before him.
The justices of the supreme court, although elected in districts, possess coordinate powers throughout the State. Const., art. vi., s. 6.
"After judgment has been rendered in a cause before a single judge in what would before the code have been an action at law, he does not at his chambers act as a court, except in cases prescribed by the statutes. (Code, ss. 400, 401, 247, 27. Jud. Act., s. 16.) In other respects, the old distinction between chamber and term duties in actions at law, I suppose, are retained. Pr. Clark v. Judson, 2 Barb., S. C. R., 93.) have not affected the practice in this respect. 1 Code Rep., N. S., 383.
(Code, ss. 402, 469, 414. 1 Burr. Sections 27 and 400 of the code Per Hand J. in Mann v. Tylor,
Any special powers and jurisdiction, heretofore vested and existing in any vicechancellor or judge of the supreme court, in any particular district or circuit, prior to the 1st Monday of July, 1847, is 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. Laws of 1849, cap. 30, p. 27.
$28. [31.] Rooms, &c.-The supervisors of the several counties shall provide the courts appointed to be held therein with room, attendants, fuel, lights and stationery, suitable and sufficient for the transaction of their business. If the supervisors neglect, the court may order the sheriff to do so; and the expense incurred by him in carrying the order into effect, when certified by the court, shall be a county charge.
By section 51 of this code, this section is made applicable to the superior court of the city of New York.
29. [32.] Repeal of existing statutes.-All statutes now in force, conferring or defining the jurisdiction of the county courts, so far as they conflict with this act, are repealed; and those courts shall have no other jurisdiction than that provided in the next section. But the repeal contained in this section. shall not affect any proceedings now pending in those courts.
30. [33.] (Amended 1849, 1851, 1852.) Jurisdiction.-The county court has jurisdiction in the following special cases, has no original civil jurisdiction except in such cases:
1. Civil actions in which the relief demanded is the recovery of a sum of money not exceeding five hundred dollars, or the recovery of the possession of personal property not exceeding in value five hundred dollars, and in which all the defendants are residents of the county in which the action is brought at the
* Prior to the new constitution the county courts were composed of a multiplicity of judges, but upon their abrogation by the constitution, new county courts were established with but a single judge, called a county judge, except that in the city and county of New York the county court is still composed of the judges of the court of common pleas, and of the mayor, recorder, and aldermen, as ex officio judges of that court. Const., art. vi., s. 14.
By laws of 1851, p. 22, c. 21, it is enacted, that the county courts shall possess the same jurisdiction in their respective counties in relation to the liberties of jails, as were vested in courts of common pleas by the revised statutes, part 3, art. iii., tit. 6, cap. 7.
By the constitution, art. vi., sec. 14, the legislature is empowered to confer equity jurisdiction in special cases upon the county judge.
In another part of the same section of the constitution, it is provided that "county courts shall have such jurisdiction, in cases arising in justices' courts, and in special cases, as the legislature may prescribe, but shall have no original civil jurisdiction, except in such cases."
The 55th section of the judiciary act of 1847, provides, that executions might be issued out of the county court thereby organized to collect any judgment in the then present court of common pleas of the same county. In O'Maley v. Reese, 1 Barb. S. C. R., 643, it was said that the legislature did not intend by section 55 of the judiciary act to give to the new county courts any judicial power in relation to a judgment in a suit originally commenced in the old court of common pleas.
See note at foot of section 30 of this code.
time of its commencement, subject to the right of the supreme court upon special motion for good cause shown, to remove any such action to the supreme court before trial.
2. The exclusive power to review, in the first instance, a judgment rendered in a civil action by a justice's court in the county, or by a justice's court in cities, and to affirm, reverse, or modify such judgment.
3. The foreclosure or satisfaction of a mortgage, and the sale of mortgaged premises situated within the county, and the collection of any deficiency on the mortgage, remaining unpaid after the sale of the mortgaged premises.
4. The partition of real property situated within the county. 5. The admeasurement of dower in land situated within the county.
6. The sale, mortgage, or other disposition of the real property, situated within the county, of an infant or a person of unsound mind.
7. To compel the specific performance by an infant heir, or other person, of a contract made by a party who shall have died before the performance thereof.
8. The care and custody of the person and estate of a lunatic or person of unsound mind, or an habitual drunkard, residing within the county.
9. The mortgage or sale of the real property, situated within the county, of a religious corporation, and the disposition of the proceeds thereof.
10. To exercise the power and authority heretofore vested in such courts of common pleas, over judgments rendered by justices of the peace, transcripts of which have been filed in the offices of the county clerks in such counties.
11. To exercise all the powers and jurisdiction conferred by statute upon the late courts of common pleas of the county, or the judges, or any judge thereof, respecting ferries; fisheries; turnpike roads; wrecks; physicians; habitual drunkards; imprisoned, insolvent, absent, concealed, or non-resident debtors; jail liberties; the removal of occupants from State lands; the laying out of railroads through Indian lands; and upon appeal from the determination of commissioners of highways; and all other powers and jurisdiction conferred, by statute which has not been repealed, on the late court of common pleas of the
county, or on the county court, since the late courts of common pleas were abolished, except in the trial and determination of civil actions; and to prescribe the manner of exercising such jurisdiction when the provisions of any statute are inconsistent with the organization of the county court.
12. To remit fines and forfeited recognizances in the same cases and like manner as such power was given by law to courts of common pleas. But the first subdivision of this section shall not apply to the county courts of the counties of Kings, and Erie.
13. To grant new trials, or affirm, modify, or reverse, judg ments in actions tried in such court upon exceptions, or case made subject to an appeal to the supreme court. But any action or proceeding pending in the county court, in which the county judge is for any cause incapable of acting, may be transferred by the county court, to the supreme court, and thereupon the papers therein on file in the county court shall be transmitted to the supreme court in the same district, which shall thenceforth have jurisdiction of such action or proceeding.
This section corresponds with section 33 of code 1848; and on an objection being raised as to the constitutionality of that section, the supreme court held it to be constitutional. Beecher v. Allen, 5 Barb. S. C. R., 169.
The case of Beecher v. Allen was questioned by an obiter dictum of Bronson, Ch. J., in Griswold v. Sheldon, 1 Code Rep., N. S., 261. The point seems to have come up directly before the court of appeals in Frees v. Ford, 1 Code Rep., N. S., 413, when it decided, that "the enactments of the judiciary act conferring jurisdiction in civil cases on the county courts are constitutional. The term special cases,' as used in the constitution, in reference to the jurisdiction of those [county] courts, does not mean only those proceedings which, under our statutes, have obtained a technical name of 'special proceedings; but such cases as the legislature may specify, contradistinguished from general jurisdiction."
A judgment of a county court for an amount exceeding the jurisdiction of the court, is void. Griswold v. Sheldon, 1 Code Rep., N. S., 261; and therefore a judgment by confession in the county court for $5,000 debt, and $25 damages and costs, was held to be void. Ib.
It appears, also, from the case of Frees v. Ford, 1 Code Rep., N. S., 413, that in an action in the county court, the record should show the facts necessary to give the court jurisdiction of the cause and the person of the defendant.
By subdivision 2, of section 33, of this code," any action or proceeding pending in any mayor's or recorder's court in which the judge is for any cause incapable of acting, may, by such court, be transferred to the county court."
The county court has slso jurisdiction of appeals from the decision of a justice's court in a summary proceeding to recover the possession of land. Laws of 1849, cap. 193, p. 292.
This section was previously amended by laws of 1852, cap. 47, p. 41.
§ 31. [34.] (Amended, 1849, 1851.) When open. Terms.-The county court is always open for the transaction of any business for which no notice is required to be given to an opposing party. At least two terms in each county for the trial