dice to an attachment levied in the state court, in the cause as there instituted and cntitled. Appeal. 108. An appeal does not lie to the court of appeals from an order of the state courts removing an action, or denying a motion to remove an action commenced therein, to the United States court. 18. General terms prescribed. 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. 1. Question. Has this section been amended since its passage in 1848? Answer. It has, in 1849, which amendment reads as above. 2. Q. How did this section read in 1848? A. As follows: §16. [1848.] Six general terms of the supreme court shall be held annually in each judicial district, and be continued at least fifteen days, unless sooner adjourned for want of business. They may, however, be continued as much longer as the court shall deem necessary. Questions. 3. Q. When must the general term only be applied to for relief against proceedings had at general term? 4. Q. What powers have the general term in making original orders? 5. Q. Is the general term of the supreme court an appellate court? 6. Q. What designation has been made for holding the general term in the 3d district? 7. Q. When should the decisions of a general term be followed by the general terms of other districts? 8. Q. Can an order of one general term control the hearing of an appeal by another general term in an adjoining district? 3 Q. When must the general term only be applied to for relief against proceedings had at general term? A. In In Corning agt. Powers, 9 How., 54, Special Term, July, 1853, HARRIS, J., and in Ayres agt. Covill, 9 How., 575, Special Term, March, 1854, HAND, J., it was decided that an application should be made only at general term upon a question affecting the judgment given at general term. It is otherwise where the application does not involve any question affecting the judgment. That is, in all cases of irregularity merely, or to open a default, and in every case where the court at general term do not pass upon any portion of the merits, the motion is properly made at special term. The special term has jurisdiction to hear a motion made upon the ground of irregularity in obtaining a judgment or order at general term, where the point was not before the latter court Or, if the judgment or order obtained at general term was regular, and the moving party seeks relief by excusing his default, then the application may properly be made at special term. It is different where the motion necessarily requires a reconsideration of the adjudication at general term. SUPREME COURT. 4. Q. What powers have the general term in making original orders? [§ 18. 4. In Anonymous agt. Anonymous, 10 How., 360, Special Term, March, 1854, MITCHELL, J., it was decided that 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 shall be brought before the general term, but does not attempt to limit its powers. In Tracy agt. Talmadge, 1 Abb., 460, General Term, May, 1855, MITCHELL, C. J., it was decided that there is but one supreme court, whether the judges holding it be at general or special term; and powers conferred by the statute may be exercised by the court at either term, unless there be some statute specially restricting the power of the court. Where, under an order of special term, that the report of referee be confirmed, unless cause to the contrary be shown within eight days, a party filed exceptions to the referee's finding, and an order was entered that all the proofs and testimony taken before the referee come before the court on the hearing of the exceptions, and the cause was placed on the general term calendar for hearing, a motion that it be struck off, on the ground that it should be heard in the first instance at special term, was denied. The motion to set aside the report of the referee might properly be made either at special or general term, according to convenience. In Matter of Opening Seventh Avenue, 29 How., 180, Special Term, June, 1865, INGRAHAM, J., it was decided that it must be considered as settled, on principle and authority, that there is but one supreme court, whether in general or special term, and that either branch is the supreme court within the meaning of the statute, and may exercise all the powers of that court; consequently, the general term, although it is an appellate court, has jurisdiction equally with the special term in confirming the report of commissioners on opening streets and avenues. 5. Q. Is the general term of the supreme court an appellate court? A. In Harris agt. Clark, 10 How., 420, Special Term, November, 1854, MASON, J., it was decided that the special term has no power to hear and decide a motion to dismiss an appeal taken to the general term from an order made at special term. Such motion can only be heard at general term. The general term, however, is an appellate court, and stands in the same relation to the special term as an appellate court does to courts of original jurisdiction. Where a justice makes an order staying proceedings on an appeal to be heard at general term, until the decision of a motion to be made to dismiss the appeal, the general term has no authority, before such motion is made, to make an order staying all proceedings until the hearing and decision of the appeal. In Gracie agt. Freeland, 1 Comst., 230, January, 1848, BRONSON, J., it was decided that a party complaining of an order made at a special term has a right to have the matter re-heard and passed upon by the court at a general term. An appeal to the court of appeals can be taken only from the decision of a general term, whether that decision was made upon a re-hearing under the judiciary act, or upon an appeal. 6. Q. What designation has been made for holding the general term in the 3d district? A. In Laws of 1849, p. 117, ch. 82, it is provided that "the 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 said city, may be held at the capitol or the city hall, in the discretion of the justices holding such ternis." 7. Q. When should the decisions of a general term be followed by the general terms of other districts? A. In Bently agt. Goodwin, 15 Alb., 82, General Term, November, 1862, INGRAHAM, J., was decided that the decisions of a general term should be followed by the general terms of other districts, unless apparently made through some mistake, or so clearly erroneous it as to leave no hesitation concerning the error. In Burt agt. Powis, 16 How., 289, General Term, June, 1858, E. DARWIN SMITH, J., it was decided that, where a decision of the supreme court is pronounced at a general term thereof, and is made the decision of the court, whether upon a question of law, equity or practice, it is authoritative upon the questions presented, and binding, as such, upon the judges of this court, and upon referees, and all other subordinate tribunals, and in all places, until overruled on reconsideration by the general term, or reversed by the court of appeals. In Freeman agt. Auld, 44 Barb., 14, General Term, May, 1865, CLERKE, J., it was decided that, however members of the court at general term may be disposed to question on a record of appeal, the decision made in the same case, at a previous general term, unless such appeal presents facts different from those on which the former decision was founded, the judgment appealed from should be the same as before. 8. Q. Can an order of one general term control the hearing of an appeal by another general term in an adjoining district? In Brotherson agt. Consalus, 28 How., 117, General Term, December, 1861: "Can this court at a general term, in an action which arose in their district, on setting aside a default on appeal in the action, which was taken at a general term of an adjoining district, and directing that the cause be heard on the appeal at the next general term in the former district, which motion was opposed, deprive the court in the latter district from hearing the appeal, when it is regularly noticed in the latter court? In other words, does the order of one general term, which is granted on opposition, setting aside the default taken at another general term in an adjoining district, where the cause was regularly noticed, and directing the appeal to be heard in the district where the order is made, per se stay the hearing of the appeal in the adjoining district?" What is the result of the decisions under this section? 1. Where relief is sought by motion, which involves or affects the adjudication which has been made at a general term, the application should be made to the general term only. But where the court at general term do not pass upon any portion of the merits, the motion is properly made at special term. 2. None of the powers of the general term are taken from it, and it can make an original order in any matter in which it might formerly have made such order. It has equal jurisdiction with the special term in confirming the report of commissioners on opening streets and avenues. 3. The special term has no power to hear and decide a motion to dismiss an appeal taken to the general term from an order made at special term. Such motion can only be made at general term. But a motion to set aside the report of referees may be made either at special or general term. 4. Where a justice makes an order staying proceedings on an appeal to be heard at general term until the decision of a motion to be made to dismiss the appeal, the general term has no authority, before such motion is made, to make an order staying all proceedings until the hearing and decision of the appeal. 5. An appeal to the court of appeals can be taken only from the decision of a general term, whether such decision be made upon a re-hearing under the judiciary act, or upon appeal. 6. The general terms of the supreme court appointed to be held in the city of Albany may be held at the capitol, or the city hall, in the discretion of the justices holding such terms. 7. The decision of a general term should be followed by the general terms of other districts, unless apparently made through some mistake, or very clearly erroneous, whether such decision be upon a question of law, equity or practice, and should be binding upon the judges of the state courts, upon referees, and all other subordinate tribunals, and in all places, until overruled on reconsideration by the general term, or reversed by the court of appeals. 8. And on a second appeal to the general term, unless the facts are essentially different, should follow their former decision, although they may question its correctness. 9. The order of a general term, directing an appeal to be heard in their district at a future time and place, as part of the conditions of opening a default, will not deprivo the opposite party from bringing the appeal to a hearing at a prior general term in an adjoining district. 1848.) 19. Number of judges to give judgment. (Same as § 17 in 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 same shall be reheard. This section has never been amended or altered since its passage in 1848. 1. Question. Can two justices make a valid decision where three compose the court, one of them not hearing the argument? Answer. In Corning agt. Slosson, 16 N. Y. R. 295, December, 1857, BOWEN, J., it was decided, that 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 a decision of the cause made by a court thus constituted, the judge who did not hear the argument taking no port in such decision, is valid. In Matter of Devine, 21 How., 80, Special Term, August, 1860, SUTHERLAND, J., it was decided, that not less than three justices can hold a court of special sessions in the city of New York. And, where a commitment shows on its face that the prisoner was convicted and sentenced by a court of special sessions held by three justices, the prisoner may on habeas corpus show, by proof aliunde the return, that the court was, in fact, held by two justices only, and thereupon the conviction and sentence must be pronounced void. § 20. Special Terms, Circuit Courts, and Courts of Oyer and Terminer prescribed. 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. 1. Question. Has this section been amended since its passage in 1848? Answer. It has, in 1849, which amendment reads as above. 2. Q. How did this section read in 1848? 4. As follows: $18. [1848.] The number of special terms, circuit courts and courts of oyer and terminer, annually, in the several counties, shall be as follows: Eleven, In the city and county of New York. Six, In the counties of Albany, Erie, Kings, Monroe and Oneida. Five, In the counties of Dutchess, Jefferson, Onondaga, Rensselaer and St. Lawrence. Four, In the counties of Allegany, Cayuga, Chautauque, Chenango, Columbia, Delaware, Herkimer, Livingston, Madison, Niagara, Ontario, Orange, Oswego, Otsego, Saratoga, Steuben, Suffolk, Tompkins, Ulster, Washington, Wayne and Westchester. Three, In the counties of Broome, Cattaraugus, Chemung, Clinton, Cortland, Essex, Franklin, Fulton with Hamilton, Genesee, Greene, Lewis, Montgomery, Orleans, Putnam, Queens, Richmond, Rockland, Schenectady, Schoharie, Seneca, Sullivan, Tioga, Warren, Wyoming and Yates. Questions. 3 Q. What distinction between the special and general terms have been judicially declared. 4 Q. When should motions be made at special terms, and when at general terms? 5 Q. When is the special term precluded on motion from reviewing and setting aside a judgment of a referee? 6 Q. What has been decided under the constitutional provision in reference to the creation of the new county of Schuyler? 7 Q. When should motions to correct the calender be made at the circuit? 3. Question. What distinction between the special and general terms have been judicially declared! Anster. In Gracie agt Freeland, 1 Comst., 231, January, 1848, GARDINER, J., it was decided, that there is a constitutional difference between the special and the general terms of the supreme court. The decisions at the general term are the only final determination of the supreme court, while those of the special term are in all cases affecting the merits of the controversy, subject to review in the same court at a general term, at the election of the party aggrieved. In Mason agt. Jones, 1 Code, R. N. S., 338, Special Term, July, 1851, MITCHELL, J., it was decided, that the special term is the supreme court as well as the general term; and that branch of the court now hears every question except on appeal, that could come before the general term. In Matter of the Empire City Bank, 18 N. Y. R., 217, December, 1858, DENIO, J., held that the special term of the supreme court is a constitutional tribunal. In Griffin agt. Griffith, 6 How., 431, Special Term, December, 1851, HARRIS, J., it was decided, that it is for the legislature to determine what proceedings shall be had at a general term and what at a special term or circuit. It may also authorize such portion of the jurisdiction vested in the court as it may deem proper, to be exercised by the judges of the court at chambers. It cannot authorize a county judge to hold a circuit or special term, for the constitution has declared who shall hold such courts. 4. Q. When should motions be made at special terms and when at general terms? 4. In Corning agt. Powers, 9 How., 56, Special Term, July, 1853, HARBIS, J., it was decided, that all non-enumerated motions, except when otherwise directed by law, are to be heard at special term. (Rule 27.) The special term has authority to determine questions of practice, even though they involve the regularity of proceedings at the general term. It was no unusual thing in the old supreme court to apply at special term for relief against a rule obtained at general term. It is only where the relief sought affects an adjudication which has been made at general term, that it is necessary to apply for such relief at the general term. In Leggett agt. Mott, 4 How., 325, New York Superior Court, General Term, May, 1850, SANFORD, J.; Lusk agt. Lusk, 4 How., 419, General Term, May, 1850, GRIDEY, J.; Graham agt. Milliman, 4 How., 435, Special Term, July, 1850, WILLARD, J.; Malony agt. Dors, 18 How., 32, Special Term, August, 1859, DALY, J., it was decided, that a motion for a re-hearing, on a report of referees as against evidence; for a new trial on the merits, where the verdict is against evidence; for a review upon the evidence appearing upon the trial, before the court, without a jury, either of questions of fact or of law, and for a new trial on a non-suit; are motions proper to be made at special term. 5. Q. When is the special term precluded, on motion, from reviewing and settir aside a judgment of a referee. A. In Dana agt. Howe, 3 Kern., 308, December, 1855, JOHNSON, J., it was decide, that |