« FöregåendeFortsätt »
a. 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 (Laws of 1850, p. 9); and 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. (Laws of 1850, p. 20.)
See section 459, post.
$ 24. [25.] (Am’d 1849, 1851, 1862.) Terms, 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 adjoumed 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.
And special terms may be adjourned to be held at a future day at the chambers of any justice of said court residing within the district, by an entry in the same manner, and then adjourned from time to time, as the justice holding the same shall order and direct.
See notes to sections 18 and 20.
$ 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 terın or circuit court, or sit at a general term, or preside at a court of oyer and terminer, any other judge may do so.
a. The justice appointed to preside at a general term in the absence of the presiding justice, may preside during the whole term, and not merely during the absence of the presiding justice (The People v. Hicks, 16 Barb. 153); and a justice of the supreme court, while a judge of the court of appeals, by virtue of his selection from the class of justices having the shortest time to serve, has authority to preside in a court of oyer and terminer, or to discharge any of the ordinary duties of a justice of the supreme court (McCarron v. The People, 3 Kernan, 74). See note to § 25.
$ 27. [30.] (Am’d 1849.) Business out of court. Proceedings in first district.
 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,
b. POWERS OF JUDGE AT CHAMBER8.—Unless a distinction is made in a statute between the powers of a judge and those of the court, the judge has the same powers as the court (Parke, B., Smeeton v. Collier, 1 Exch. Ř. 459); but if the distinction is made by the statute, then a judge cannot exercise any power which is conferred on the court. (Clarke v. East India Co., 2 Bail Court Rep. 320.) A judge of the supreme court, like any other officer, when acting out of court is an officer of limited jurisdiction. He may do just what the legislature has authorized him to do, and whatever he does more than this is done without jurisdiction. (Bangs v. Selden, 13 How. 376; and see Reg. v. Sewell, 6 Law Times, 191.) The justices of the supreme court, although elected in districts, possess co-ordinate powers throughout the State (Const. art. vi. s. 6), and have the powers vested in vice-chancellors and judges of the supreme court prior to July, 1847. (Laws of 1849, p. 27; and see Garcie v. Sheldon, 3 Barb. 232; Aymer v. Chace, 1 Code R. N. S. 333.)
A judge at chambers, on an application under section 247, may make either an absolute or a conditional order, precisely as at special term. (Witherspoon v. Van Dolar, 15 How. 266.)
In the first judicial district a motion to open a judgment and let defendants in to defend, may be made to a justice out of court (Louber v. Mayor of N. Y., 5 Abb. 325), and so may a motion to appoint a guardian ad litem for a defendant in a partition suit. (Disbroro v. Folger, 5 Abb. 53.) And generally in the first district, all motions, except for new trials, may be made at chambers; and this includes a motion for an allowance. An order made at chambers in the first district is always made during a term of the court, as a special term is always held during the hours of attending at chambers. (Main v. Pope, 16 How. 271.)
A judge at chambers may punish for contempt (Re Smethurst, 3 Code R. 55 ; 2 Sand. 724;. Shepherd v. Dean, 13 How. 173; Wicker v. Dresser, 14 id. 465 ; see, however, 13 id. 331).
Except in the cases prescribed by statute, the former distinction between chamber and term duties of a judge are retained. (Mann v. Tyler, 1 Code R. N. S. 383 ; Curk v. Judson, 2 Barb. 93.) The court is not always open as a
court of equity, except to en ble the justices thereof to make such orders as the chancellor formerly ma le out of term. (he Bookhout, 21 Barb. 348.)
Power of a justice of the supreme court upon a statute writ of habeas corpus returnable before him at chambers. (See The People v. Wilcox, 22 Barb. 179.)
Q. WHAT A JUDGE AT CHAMBERS CANNOT DO.-A judge at chambers cannot review the ex parte order of another judge (Cayuga. Bank v. Warfield, 13 How. 439), nor
Allow a common law writ of certiorari (Gardener v. Commissioners of Warren, 10 How. 181), nor
Entertain a motion for discharge of a debtor from imprisonment (Re Walker, 2 Duer, 655 ; Mather's case, 14 Abb. 45), nor
Review collaterally the decisions of a court of competent jurisdiction, as to discharge from a commitment for contempt (The People v. Orser, 12 How,550),
Entertain a motion in arrest of judgment (Duel v. Agan, 1 Code R. 134), nor For a new trial (Lusk v. Lusk, 3 Code R. 113; Graham v. Milliman, 4 Kow. 435), nor
Lessen the time for a notice of motion (Merrit v. Slocum, 6 How. 350), nor
Extend the time to make a case after the ten days have expired (Doty v. Brown, 3 How. 375; 2 Code R. 3), nor
Adjust costs (Nellis v. De Forest, 6 How. 413; Van Schaick v. Winne, 8 id. 6), except in the cases provided for in section 311 post, nor
Grant a judgment, except under section 247 (Aymar v. Chace, 12 Barb. 301), nor
Except in the first district (Main v. Pope, 16 How. 271), entertain a motion for an allowance (Mann v. Tyler, 6 How. 236 ; 1 Code R. N. S. 382 ; Rule 52), nor
Entertain proceedings for appointment of a guardian to sell real estate of infants (Re Bookhout, 21 Barb. 348),
Nor can he make an absolute, indefinite, and continuing order, either to set aside or stay proceedings; at most he has only power to stay the proceedings for a time, as until the next ensuing term, or until an order to show_cause is applied for or disposed of. (Genesee Bank v. Spencer, 15 How. 14.) This rule applies to proceedings supplementary to execution. "(Id.) See section 324 post.
b. The true interpretation of the second part of this section is : A proceeding commenced in the first judicial district by any judge competent to institute it therein, may be continued in such district before any other judge competent to have commenced it. (Dresser v. Van Pelt, 15 How. 19.) See similar provisions for proceedings in the superior court and court of common pleas, note to s. 33, post, and see s. 401, subd. 6.
c. The act (1849, ch. 121, s. 4) conferring on the Recorder of Troy the powers of a justice of the supreme court at chambers held to be unconstitutional. (Grifin v. Griffith, 6 How. 428.)
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.
d. This section applies to the court of common pleas for the city and county of New York, and the superior court (s. 51, post) and marine court of the said city (Laws 1853, p. 992, Laws 1861, p. 65), and to the district courts of New York city. (Laws 1857, ch. 344.)
Of the County Courts.*
Section 29. Repeal of existing statutes.
$ 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.] (Am'd 1849, 1851, 1852, 1860.) Jurisdiction : Transfer of action to Supreme Court.
The county court has jurisdiction in the following special cases, but 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 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.
a. County judges are not allowed any fees for services except for such as may be performed by justices of the peace, or commissioners of deeds; and no greater fees for such services than those allowed to said justices and commissioners. Surrogates' fees not affected. (Laws 1857, vol. 2, p. 197.)
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 anpaid 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 person of unsound mind.
7. To compei 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 recoguizances, in the same cases and like manner as such power was given by law to