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court may, by general rules, provide what causes shall have a preference on the calendar.

On a second and each subsequent appeal to the court of appeals, the cause shall be placed upon the calendar as of the time of filing the return on the first appeal.

13. [1862.] There shall be four terms of the court of appeals, in each year, to be held at the capitol in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the last Tuesday of September, and continued for as long a period as the public interests may require.

But the judges of said court may, in their discretion, appoint one of said terms in each year to be held in the city of New York.

Additional terms shall be appointed and held at the same place 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.

On a second, and each subsequent appeal, to the court of appeals, or when an appeal has once been dismissed for a defect or irregularity, the cause shall be placed on the calendar as of the time of filing the first appeal.

13. [1863.] There shall be four terms of the court of appeals, in each year, to be held at the capitol in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the last Tuesday of September, and continued for as long a period as the public interests may require.

But the judges of said court may, in their discretion, appoint one of said terms in each year to be held in the city of New York.

Additional terms shall be appointed and held at the same place 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.

On a second, and each subsequent appeal, to the court of appeals, or when an appeal has once been dismissed for a defect or irregularity, the cause shall be placed on the calendar as the time of filing the first appeal.

And whenever in any action or proceeding in which the people of this state or any state officer, or any board of state officers, is or are sole plaintiff or defendant, an appeal has been or

shall be brought from any judgment or order for or against him or them, in any court, such appeal shall have a preference in the supreme court and in the court of appeals, and may be moved by either party out of the order on the calendar.

3. Q. What causes are declared by statute to have a preference on the calendar?

A. Any civil action or proceeding in which the people of this state are a party, and when the attorney general shall be the attorney on record, shall have a preference in all the courts of this state and may be moved on the part of the people out of its order ou the calendar; but such preference shall not be had unless the attorney for the state shall give notice at the time of service of notice of trial or argument, of the day on which he shall move the trial or hearing of the action; and in case the same shall not be moved by the attorney for the state on such day, the defendant shall have the right to move the trial or argument of the action, and the trial or argument shall not be moved out of its order on any other day than the day specified in such notice, unless the court shall otherwise direct. (Laws of 1858, ch. 37, § 1, p. 65.) Actions in which executors and administrators are sole plaintiffs or sole defendants, shall have a preference in the court of appeals and in the supreme court at the general term thereof, over all actions except in criminal cases, and may be moved out of their order on the calendar. Appeals which prevent the issuing of letters testamentary or of general administration, shall also have a preference for hearing in the court of appeals and in the supreme court, over all actions except criminal cases, and may be moved out of their order accordingly. (Sess. Laws, 1860, p. 270.)

In Brainerd agt. The N. Y. and Harlem R. R. Co., 23 How., 491, Court of Appeals, it was decided, that the Revised Statutes (3 R. S. 756, 5th ed.), which provides that every issue of fact or of law joined in an action founded on any evidence of debt against a corporation, shall have a preference on the trial and argument thereof in any court, where the same may be pending, is still in force.

Actions which have a preference on the calendar are the following:

1. Any action in which the people of the state are a party, and when the attorney general shall be the attorney on record.

2. Criminal cases.

3. Appeals which prevent the issuing of letters testamentary or of general adminıs.

tration.

4. Appeals in which the sole plaintiffs or defendants are executors or administrators. 5. Appeals in actions on evidences of debt against a corporation.

6. All other preferred causes.

§ 14. Number of judges who may give 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.

1. Question. In what years has this section been amended since its passage in 1848? Answer. In 1819 and 1851, which last amendment reads as above.

2. Q. How did this section read in 1848 and 1849?

A. As follows:

14. [1848.] The concurrence of five judges shall be necessary to pronounce a judgment. If five do not concur, the appeal shall be reheard.

14. [1849.] 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.

Questions.

3. Q. When will the judicial rule "stare decisis" be applied to the decisions of this court?

4. Q. Can the judges of this court set in review of their own decisions made when they were judges of the court below?

5. Q. When may or may not the opinions of the court be considered as authority upon all the questions discussed in the case?

3. Q. When will the judicial rule, starc decisis be applied to the decisions of this

court?

4. In Oakley agt. Aspinwall, 3 Kern., 500, March, 1856, JOHNSON and COMSTOCK, J. J., it was decided that the judicial rule "stare decisis" has great force with this court in reference to adjucations on questions of law, made by it after full discussion and examination. It is necessary that a decision should not be departed from except upon the strongest and plainest grounds.

In Mason agt. Jones, 5 How., 119, Court of Appeals, June, 1850, BRONSON, J., it was decided, that where a judgment is regularly pronounced by this court without any dissent at the time, neither party can go behind this public act of the court and attack the judgment, on the ground of what may have taken place among the judges in their pricate consultations. The alteration of the Code of 1848 which authorized a judgment of affirmance on an equal division of opinion among the judges, by the Code of 1849, is not unconstitutional. In Morse agt. Gould, 1 Kern., 285, September, 1854, DENIO, J., it was decided, that since the alteration of this section of the Code in 1849, where there is an equal division of the judges in opinion, the determination cannot be considered as a precedent, but the question must be regarded as entirely open.

In Green agt. Clark, 13 Barb., 59, General Term, 1852, W. F. ALLEN, J., it was decided, that this court is not authorized to give a different judgment in a case that has come before them a second time, with substantially no new evidence or new features, although they might be unable to determine that the members of this court, on the first decision had agreed upon any one ground for their judgment.

In Towle agt. Forney, 4 Kern., 429, September, 1856, DENIO, J., it was decided, that a final decision of this court is binding upon the United States courts to the same extent as apon the courts of this state. Where a point is well settled by the drcision of this court; it cannot do otherwise than follow that decision, notwithstanding the supreme court of the United States has taken a different view of the matter.

In Curtis agt. Leavitt, 15 N. Y. R., 188, June, 1857, PAIGE and SELDEN, J. J., and in Bell agt. Me Elwain, 18 How., 150, Court of Appeals, September, 1859, JOHNSON, J., it was decided, that where a question has been expressly determined by this court in two cases, although it is clear that the question has never been fully considered by it; the court is not at liberty to disregard the determinltion, although some of its members subsequently, may believe the decision erroneous. It is essential to the security of property that a rule should be adhered to when settled, whatever doubt there may be as to the grounds on which it originally stood.

4. Q. Can the judges of this court properly set in review of their own decisins made when they were judges of the court below?

A. In Pierce agt. Delamater, 1 Comst,, 19, September, 1847, BRONSON, J., it was decided, that it is the right and the duty of any judge of this court to take part in review

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ing the decisions of the supreme court while he was a member of it. The Revised Statutes which prohibits a judge of an appellate court from taking part in the decision of any cause or matter which shall have been determined by him when sitting as a judge of any such court. shall not apply to any judge of the court of appeals (Laws 1850, p. 46, ch. 41, § 2).

5. Q. When may or may not the opinions of the court be considered as authority upon all the questions discussed in the case?

A. In James agt. Patten, 2 Seld., 16, December, 1851, PAIGE and GARDINER, J., J., it was decided that, where several questions arise in a cause, and the opinions delivered agree in regard to all of them, and the other members of the court give a silent vote of concur rence, all the questions will be deemed to have been determined by a majority of the court, and the decision considered authoritative. But where two or more opinions are delivered by judges of this court, and all the judges arrive at the same general result, but for different reasons, and the residue of the judges give a silent vote of concurrence, there, as it does not appear that a majority of the court agreed as to any one question, in particular, as the ground of the decision, the case cannot be considered as authority on any of the questions.

What is the result of the decisions under this section?

Stare Decisis.

1. The rule stare decisis has great force with this court. After full discussion and examination on questions of law, the court will not depart from its adjudications, except upon the strongest and plainest grounds.

2. Neither party can go behind the judgment of the court, after it is regularly pronounced, and attack the judgment on what may have taken place among the judges in their private consultations.

3. This court is not at liberty to disregard its express determination made in two cases, although it is clear that the question has never been fully considered by it, and although some of its members subsequently may believe the decisions erroneous.

Division of the Judges.

4. The Code authorizing an affirmance of judgment on an equal division of the judges of this court is not unconstitutional.

5. The determination of this court where there is an equal division of the judges cannot be considered as a precedent, but the question must be regarded as entirely open.

6. The supreme court is not authorized to give a different judgment on a second hearing, with substantially no new evidence or new features, although they might be unable to determine that the members of the court, on the first decision, had agreed upon any one ground for their judgment.

United Statee Courts.

Where a point is well settled by the decision of the court of appeals, it is bound to follow it, notwithstanding the Supreme Court of the United States has taken a different view of the question.

8. A final decision of this court is binding upon the United States courts to the same extent as upon the courts of this state.

Review by the Judges of their own Decisions.

9. It is the right and duty of a judge of this court, and he is authorized by statute, to set in review of his own decision given while a member of another court, when properly brought before him in this court.

Opinions, when Authority

10. When the opinions of the court which are delivered agree upon all the questions raised, and the other members concur by a silent vote, all the questions will be considered decided by a majority of the court, and authoritative.

11. Where two or more opinions are delivered, and all the judges arrive at the same general result, but for different reasons, and the residue of the judges concur in a silent rote, the majority of the court does not agree upon any one question, and the case is not authoritative upon any of the questions.

§ 15. Sheriffs to provide rooms, &'c., for court. (First passed in 1849).

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. Court may be adjourned to places other than those designated by law.

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. Any one or more of the judges may adjourn the court, with the like effect as if all were present.

1. Question. Has this section been amended since its passage in 1849 for the first? Answer. It has, in 1851, which amendment reads as above.

2. Q. How did this section read in 1849 ?

A. As follows:

16. [1849.] 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 or town from that at which it is appointed to be held, 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. Any one or more of the judges may adjourn the court, with the like effect as if all were present.

Questions.

3. Q. What was the provision made by the judiciary act of 1847 for holding this court, and has it been repealed?

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