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a. As to costs, see notes to sections 304, 305, 306, post.

b. Where the order entered on the decision of a cause in the court of appeals does not correctly state the judgment pronounced by the court, it will be amended on motion, notwithstanding the remittitur may have been sent to the court below and filed there. Palmer v. Lawrence, 1 Selden, 455.

§ 13. [13.] (Amended 1851, 1852.) Terms.

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 continue for as long a period as the public interests may require.

Preference of causes.

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.

c. This section in the code of 1849 was as follows:

"There shall be at least five terms of the court of appeals in each year, to be held at such time and place as the court may appoint, and continued for as long a period as the public interests may require; additional terms shall be appointed and 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."

d. The amendment of 1852 was, substituting the last for the third Tuesday in September, as a time for commencing a term.

e. 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.

f. 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."

g. 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."

4. 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 may arise. Morse v. Goold, 1 Kernan., 281; 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.

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b. The constitution, art. 6, s. 2, provides that the court of appeals shall be " composed of eight judges," omitting to declare that a less number shall be competent for the transaction of business. The judiciary act, however, provides that judges of the court of appeals shall be necessary to constitute a quorum for holding any term of said court." Laws of 1847, p. 321, s. 6. The constitutionality of that provision has been doubted, but the doubt is supposed to be removed by the court having adopted it.

c. The constitution, art. 6, s. 2, prescribes, that provision shall be made by law for designating one of the number of the judges of the court of appeals, elected by the electors of the State, as chief judge. This is done by the judiciary act. Laws of 1847, p. 320, s. 5.

d. Under the constitution of 1846, it is the right and the duty of a judge of the court of appeals to take part in the determination of causes brought up for review from a subordinate court of which he was a member, and in the decision of which he took part in the court below. Pierce v. Delamater, 1 Coms. 17.

e. 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.

f. As to cost, see notes to sections 304, 305, 306, post.

15. Sheriff to provide rooms.

lf, 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.

g. The amendment to this section was the omission at the point where one asterisk is placed, of the words "or town;" and where the 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.

TITLE III.

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.

19. Judgment, how given.

20. Special terms, &c.

21. Circuit and oyer and terminer together.

22. Times and places of holding courts.

23. Extraordinary terms, &c.

24. Courts, where held.

25. Publication of appointment.
26. Inability of judge.

27. Business out of court.

28. Rooms, &c., how furnished.

§ 17. [15.] (Amended 1849.) Existing statutory provisions as to terms, &c., repealed.

All statutes, now in force, providing for the designation of

*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 mayor's court of the city of Rochester on the 30th April, 1849, and of all the proceedings incident to judgments rendered in that court in those actions on or before

the times and places of holding the general and special terms

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.

a. 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.

b. 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 all 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. 643.

e. 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.

d. This court may determine the validity of any actual or alleged devise or will of real estate. Laws of 1853, p. 526.

e. This court has power-under the constitution of 1846, which gives to this court jurisdiction over all suits pending in the court of chancery, on the first day of July, 1847-to vacate the entry of satisfaction of a final decree of that court, entered on its records prior to 1846, on the return of an execution satisfied, and to order a new execution to be issued on the decree. Suydam v. Holden, Court of Appeals, October, 1853.

f. The laws of 1852, p. 591, in relation to the supreme court of the first judicial district, provide-for additional sittings, that several circuits may sit at the same time, for extra pay to justices, and for a justice to be elected for eight years.

g. 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.

h. Hardly any step, except to try or refer, can be taken at the circuit in a cause pending in the supreme court. (2 R. 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.

i. 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 Munroe, 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.

j. 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 jadges 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 Weud., 543, 545.

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 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.

a. As to these courts in the first judicial districts, see supplementary act, sec. 11.

§ 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.

b. 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.

c. Although there are general terms and special terms of the supreme court, there is but one supreme court, (Ayres v. Covill, 9 Pr. R., 573; Corning v. Powers, ib. 54; Gracie v. Freeland, 1 Com., 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 It is different where the motion necessarily requires a reconsideration of the adjudication at general term." Hand, J., in Ayres v. Covill, supra.

term.

d. 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 Pr. R., 415.

e. See further note to section 20, infra.

§ 19. [17.] Judgment, how given.

The concurrence of a majority of the judges holding a gen

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