§ 18. [16.] (Am'd 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 districts shall appoint, at such times and places as a majority of the judges of such district shall appoint.

a. General terms of the supreme court held in the city of Albany, may be held at the capitol, or the city hall. (Laws 1849, ch. 82, p. 117.)

The general term is an appellate court, and stands in the same relation to the special term as an appellate court does to courts of original jurisdiction. (Yates v. The People, 6 Johns. 334; Harris v. Clark, 10 How. 415.)

b. Although there are general terms and special terms of the supreme court, there is but one supreme court (Ayres v. Covill, 9 How. 573; Corning v. Powers, ib. 54; Gracie v. Freeland, 1 Coms. 228; Mason v. Jones, 1 Code Rep. N. S. 338), and the special term has jurisdiction to set aside an order made at general term on a default or on the ground of any irregularity in making the order. "It is only when the relief sought affects the adjudication at the general term, that it is necessary to apply to the general term for relief. Where the motion is upon the ground of irregularity in obtaining the judgment or order at general term, and the point was not before the court, or if the judgment or order was regular and the party seeks relief by excusing his default, I see no reason why the application should not be at special term. It is different where the motion necessarily requires a reconsideration of the adjudication at the general term." (Hand, J., in Ayres v. Covill, supra.) On an appeal to the general from the special term, the special term has no authority to entertain or decide a motion to dismiss the appeal. Such a motion can only be heard at a general term. (Harris v. Clark, 10 How. 415.)

See further, note to section 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.

e. A judge of the supreme court who has not heard the argument of a cause, is competent to sit with two others who heard it, for the purpose of constituting a court, and the decision of a cause made by a court thus constituted-the judge who did not hear the argument taking no part in the decision-is valid. As it was the duty of the three judges who heard the argument to consult together in relation to the decision, it is to be presumed that they did so, and that the decision subsequently announced is the result of such consultation. (Corning v. Slosson, 16 N. Y., 294.)

20. [18.] (Am'd 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.

a. 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 How. 428.)

b. The distinction between the power of the court at special and general terms was discussed in the case of Garcie v. Freeland, 1 Coms. 228, and again in Mason v. Jones, 1 Code Rep. N. S. 338. The special term is the supreme court as well as the general term; and, unless the law or the constitution points out a limit, it has the same powers. 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. An application to amend a judgment at general term, for irregularity merely, may be made at special term (De Agreda v. Mantel, 1 Abb. 133; Corning v. Powers, 9 How. 54); but the special term cannot, on motion, set aside as erroneous a judgment entered on report of a referee. (Dana v. Howe, 3 Kernan, 308.)

c. There is but one supreme court, which acts and decides; whether it acts through the special term or the general term, its powers are the same. None of the ancient powers of the general term are taken from it; and it can therefore make an original order in any matter (as for re-taxation of costs) in which it might formerly have made such order. The code specifies the manner in which appeals should be brought before the general term, but does not attempt to limit its powers. (Anon. 10 How. 353.)

See note to section 18, ante.

§ 21. [19.] (Am'd 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.

§ 22. [23.] (Am'd 1849.) Times and places of holding

court.

The governor shall, on or before the first day of May, 1848, 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, 1849. 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, 1850, and so on, for every two succeeding years, in their respective districts.

§ 23. [24.] Extraordinary terms, &o.

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.

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 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.

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.

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§ 26. [28.] Inability of judge.

In case of the inability, for any cause, of a judge assigned for that purpose, to hold a special terin 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, 15 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. Proceed ings in first district.

[1] The judges shall, at all reasonable times, when not engaged in holding court, transact such other business as may be done out of court.

[2] 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 CHAMBERS.-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. R. 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. (Disbrow 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: Clark v. Judson, 2 Barb. 93.) The court is not always open as a

court of equity, except to enable the justices thereof to make such orders as the chancellor formerly made out of term. (Re 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.) a. 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),

nor

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 How. 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. (Griffin 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.)