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.

3. Q. What provision is made by statute for holding terms in the third district? A. The answer will be found under § 18, Q. 6.

§ 25. Publication of appointment thereof. [Same as § 26 in 1848.].

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.

1. Question. What is the effect of duly publishing notices require ! under this section? A. The answer will be found under § 21, Q. 5.

Question. How did section 27 read in 1848 (which is left out in the Code of 1849)?
A. As follows:

$27. [1848.] The designation of judges to hold the courts shall be such as that not more than one-half, nor less than one-fourth, of the courts to which each shall be assigned, shall be held out of the district within which he was elected; and so that, of the judges who shall hold a general term, one, at least, shall sit at the next succeeding general term, and shall deliver the judgments of the judges who held the preceding term, in causes there argued and held under advisement.

§ 26. When judges not assigned may hold the courts. [Same as § 28 in 1848.]

In case of the inability, for any cause of a judge assigned for that purpose, to hold a special term or circuit court, or sit at a general term, or preside at a court of oyer and terminer, any other judge may do so.

Questions.

1. Questim. What act was passed in 1848 respecting the absence of a presiding justice? 2. Q. Can a justice designated under the statute of 1848 preside, when the absent justice has returned to his seat?

3. Q. What power has a justice of the supreme court to act as such, while sitting in the. court of appeals?

1. Q. What act was passed in 1848 respecting the absence of a presiding justice?

A. "The justice of the supreme court in each judicial district having the shortest time to serve, and who is not a judge of the court of appeals, nor appointed or elected to fill a vacancy in the first class, shall be a presiding justice in the supreme court; and in case of the death, absence or inability of the presiding justice appointed to hold any general term of the supreme court, any three justices convened to hold such term, may designate one of their number to preside at such general term." (Laws 1848, ch. 170, § 15, p. 282.)

2. Q. Can a justice designated under the statute of 1848 preside when the absent justice has returned to his reat?

A. In The People agt. Hicks, 15 Barb., 156, General Term, May, 1853, EDWARDS, P. J., said: 44 When the statute declares that the justice designated may preside at such general term, it clearly means at the whole of such general term, if deemed expedient, and not merely during such portion of such term as the absence of the regular presiding justice shall continue.

3. Q. What power has a justice of the supreme court to act as such, while sitting in the court of appeals?

A. As to the power of a justice of the supreme court to hold a court of oyer and terminer, while acting in the court of appeals, see § 21, Q. and A. 6. The 6th section of the 6th article of the constitution makes provision for the appointment of justices of the supreme court to preside at general terms, special terms, circuit courts and courts of oyer and terminer.

Question. How did section 29 read in 1848 (which is left out in the Code of 1849)?
Answer. As follows:

29. [1848.] Within ten days after the expiration of every term and circuit court, the clerk shall certify to the governor the number of actions on the calendar, the number tried or heard, the number decided, the number remaining undisposed of, and the duration of the term or circuit.

$27. Duties of judges as to business out of court.

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.

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:

$30. [1848.] The judges shall, at all reasonable times, when not engaged in holding court, transact such other business as may be done out of court. One of the judges elected in the first judicial district, to be designated from time to time, among themselves, shall attend for that purpose, at the city hall in the city of New York, on every judicial day, from ten o'clock in the forenoon until three o'clock in the afternoon, and longer, if the business require it; and every proceeding commenced before one of those judges, may be continued before another. with the same effect as if commenced before him.

Questions.

3. Q. What jurisdiction may be exercised by justices out of court?

4. Q. What powers have the justices out of court in equity cases?

5. Q. What power have the justices to review the ex parte orders of each other?

6. Q. When may proceedings commenced before one justice in the 1st district be continued before another?

7. Q. Has one justice power to set in review of the rulings of another justice in the same

court?

8. Q. Can the action of a justice having general authority in any case be considered a nullity?

3. Q. What jurisdiction may be exercised by justices out of court?

A. In Bangs agt. Selden, 13 How., 376, Special Term, November, 1856, HARRIS, J., it was decided, that 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 anthorized him to do, and whatever he does more than this is done without jurisdiction. Any justice of the supreme court, any where, may make an order out of court and without notice, staying proceedings in an action to enable a party to apply for some ulterior relief, provided the time shall not exceed twenty days. If the stay go beyond that limit the order is void. The judge has transcended his jurisdiction.

In The Matter of the Knickerbocker Bank, 19 Barb., 603, General Term, April, 1855, MITCHELL, J., and in The People agt. Kelly, 35 Barb., 446, General Term, January, 1862, BOCKES, J., it was decided that, the mere entitling an order as at special term, which by law, may be made before a judge out of court, or the making of it by the judge when sitting at special term, instead of when sitting at chambers, does not vitiate the order. He has the power to make the order as a judge, and it detracts nothing from the force of the order made by him as a judge that he makes it at the special term, or entitles it as made at the special term. And if such an order is to be appealed from it is to be

SUPREME COURT.

[§ 27.

entered as if made at the special term.
before a judge as an officer, and not as a court, a writ of certiorari to review the proceed-
Where a proceeding upon habeas corpus is had
ings is properly directed to him. The writ of certiorari in such a case, is properly
allowed by a justice of the supreme court.

In Dresser agt. Van Pelt, 15 How., 25, General Term, November, 1857. HOFFMAN, J., it was decided, that when a judge directs an attachment for contempt, &c., to issue in supplementary proceedings, and has jurisdiction, when any judge of the same court who is found at the place designated on the day specified, has jurisdiction, when place and time are distinctly pointed out, the mere fact that the party is to be brought before the judge when holding a court at special term, does not render the proceedings or process void. Under the Code a judge has power to punish for contempt, consequently an attach ment issued for contempt may be made returnable before him at his office." (See to the same effect Matter of Smithurst, 2 Sand. 724.)

In The People agt. Orser, 12 How., 550, Special Term, December, 1855, DEAN, J., it was decided, that a justice of the supreme court at chambers has no authority to review collaterally the decisions of courts of competent jurisdiction-as where the New York common pleas committed a prisoner for an alleged contempt, and a question of want of jurisdiction in the common pleas to make the commitment, was raised, argued and decided by the general term of the common pleas.

In Merritt agt. Slocum, 6 How., 350, Special Term, August, 1851, HARRIS, J., it was decided, that no judge at chambers has the power of prescribing a shorter time than eight days for serving a notice of motion to be made in court or before another judge; but when the motion is to be made before the judge himself, he may prescribe a shorter time.

In Nellis agt. De Forest, 6 How.. 415, Special Term, March, 1852, CRIPPEN, J., and in Van Schaick agt. Winnie, 8 How., 6, Special Term, February, 1853, HARRIS, J., it was decided, that a judge at chambers has no power to tax or adjust costs. The amount of costs upon interlocutory proceedings should be fixed in the order which awards them. An order granting a new trial which omits the disposition of costs, can be corrected only by a judge at special term

In Gardiner agt. The Commissioners of Highways of the Town of Warren, 10 Hou., 182, Special Term, October, 1854, CRIPPEN, J., it was decided, that a common law writ of cer tiorari, cannot be allowed by a judge at chambers. An application to the court, either at general or special term is necessary, the same as under the former practice. The statute of 1847 (judiciary act § 17) must be construed to apply to writs of error and writs of certiorari, authorized by statute.

In Mann agt. Tyler, 6 How., 236, Special Term, October, 1851, HAND, J., it was decided, that allowances for extra costs must be made by the "court" and not by a justice at chambers. There is no objection to entertaining the application at the time of the trial without a formal notice, if the same judge is then holding special term. But if not, made then, notice should be given as in other cases. made to the court before which the trial is had or judgment rendered. But after judg Rule 86 requires the application to be ment has been rendered before a single judge, in what would have been formerly an action at law, he does not at his chambers, act as a court, except in cases prescribed by statute. In other respects the old distinctions between chamber and term duties in actions at law are retained. Sections 27 and 400 of the Code have not affected the practice in this respect.

In Matter of Walker, 2 Duer, 656, General Term, July, 1853, OAKLEY, DUER and CAMPBELL, J. J., it was decided, that an application by petition for the discharge of a debtor, imprisoned under an excution, cannot be heard by a justice at chambers. It must be presented to the court at a regular special term. (R. S. Art. 6 Tit. 1, ch. 5, Part 2,

p. 690, 2d ed.) (See, to the same effect, Mather's case, 14 Abb. 45.)

In Duell agt. Agan, 1 Code, R., 134, Special Term, June, 1849, WILLARD, J., it was decided, that a judge at chambers has no authority to hear a motion in arrest of judgment. If such a motion can be made at all under the Code it must be made at general term.

In Doty agt. Brown, 3 How., 375, Special Term, January, 1849, MASON, J., it was decided, that a judge at chambers had no power to grant an order extending the time to make a case or bill of exceptions, after the time for making the same by the rules of the court, had expired, in an action pending when the Code took effect.

In The Bank of Genesee agt. Spencer, 15 How., 15, General Term, September, 1857, JOHNSON, J., it was decided, that a judge at chambers has no power to 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, until the next term, or until a rule nisi has been applied for, so as to afford an application to the court. And this rule applies to proceedings supplementary to execution. The judge before whom these proceedings have been instituted and are pending, including a county judge, has sole and exclusive jurisdictoin over them until they are finally disposed of. No other judge at chambers has power to grant a general stay in such proceedings. It belongs to the duties of a judge sitting as a court, and not at chambers.

In Witherspoon agt. Van Dolar, 15 How., 267, Special Term, October, 1857, E. DARWIN SMITH, J., it was decided, that a justice of this court at chambers, on an application for

judgment on account of the frivolousness of the answer, has power under section 247 of the Code, to make an absolute or conditional order for judgment, precisely as at special term. The power to hear the motion, necessarily includes the power to make such decis ion upon it as the court would make in term. Such an order or decision as the justice of the case requires.

4. Q. What powers have the justices out of court in equity cases?

4. By the 16th section of the judiciary act of 1847 it was provided that "orders in equity, which have heretofore been made by the chancellor out of term, may be made by any justice of the supreme court being or residing within one hundred miles of the county where the solicitor or party making the application resides, at any time, either in term or vacation, at chambers, or at any place selected by such justice" (Lars of 1847, p. 641, § 16.

In Clark agt. Judson, 2 Barb., 93, Special Term, December, 1847, HAND, J., it was decided that the present supreme court is now always open as a court of equity, as much as the former court of chancery, except so far as restricted by its own rules. And the 16th section of the act to amend the judiciary act does not affect mere chamber business, properly so called; that class of orders which are not entered with any clerk, and which are made by the judge or officer, and not by the court. (6 Paige, 374; 2 Id. 331; 1 Edw. Ch. R. 318.) The 51st section does not now extend to these. A critical reading of this 16th section may perhaps limit it to mere chamber business, to orders made by the chancellor out of term. But as the court is always open (on the equity side), and the chancellor has heretofore done a great deal of business in his court out of term, such as hearing ex parte motions, and even making decretal orders, &c, it is believed the legislature intended to make an important alteration as to the place of making application for these orders. There was no restriction as to time before, except by the 147th rule; and this section is paramount, of course, to that, and will abrogate some of its restrictions.

In Garcie agt. Sheldon, 3 Barb., 234, General Term, June, 1848, SILL, J., it was decided that the justices of the supreme court possess the same powers at chambers, in equity cases, and can make the same orders there, that the chancellor could make out of term, unless restricted by the rules of that court. The court of chanccry, and the equity side of this court, is always open; and an interlocutory order made by the chancellor at chambers, if drawn up and entered on the minutes, by a clerk or register, as an order of the court, was not irregular. The same practice is allowed on the equity side of this court, where it does not conflict with the 147th rule. Therefore a judge at chambers may hear a motion for a reference to ascertain damages on the issuing of an injunction. In Aymar agt. Chace, 12 Barb., 301, General Term, December, 1851, EDMONDS, J., it was decided that a judge at chambers has no power to render a judgment for the defendant on the ground that the plaintiff has not replied to the answer. There is but one case in which a judge at chambers can grant a judgment, and that is under section 247 of the Code, upon a frivolous pleading. In all other cases, judgment can be rendered only by the court when sitting as such, and not by a judge at his lodgings, in the street, or even in chambers.

In Matter of Bookhout, 21 Barb., 350, Special Term, March, 1856, BALCOM, J., it was decided that the supreme court, at special or general term, must make all orders in proceedings for the sale or other disposition of infant's real estate; and that a judge at chambers cannot open or hold a court for the transaction of such business. The application at chambers to appoint a guardian denied.

3. Q. What power have the justices to review the ex parte orders of each other?

A. In Cayuga Co. Bank agt. Warfield, 13 How., 440, Special Term, December, 1856, E. DARWIN SMITH, J., it was decided that it was never intended by the legislature to impose upon the judges of the supreme court the duty, or confer the right, to review at chambers each other's ex parte orders. (See Hart agt. Butterfield, 3 Hill, 456.) Therefore a motion to vacate or modify an order of arrest, although it may be made ex parte to the judge who granted the original order, cannot be made before any other judge, except to the court, on notice, in the manner in which other motions are made.

6. Q. When may proceedings commenced before one justice in the first district be continued before another?

A. In Dresser agt. Van Pelt, 15 How., 23, General Term N. Y. Superior Court, November, 1857, HOFFMAN, J., it was decided that a proceeding 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.

In Ammidon agt. Wolcott, 15 Abb., 317, General Term, November, 1860, HOGEBOOM, J., the same doctrine was held, where an objection was taken that the order for the examination of a party in supplementary proceedings was returnable before one of the justices of the court, at chambers, in the first district, instead of the judge making the order.

In Hilton agt. Patterson, 18 Abb., 248, Special Term, October, 1864, LEONARD, J., it was also decided that the order in supplementary proceedings could be continued before another judge in the first district than the one who granted the order originally.