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Provisions relating to Courts in the First Judicial District.*
$ 11. (Amended 1819.) General term of supreme court, how continued.
The general term of the supreme court, appointed to be held in the first judicial district, on the first Monday of April, eighteen hundred and forty-eight, shall be continued from the first Monday of each month to the third Saturday thereafter, until and including the third Saturday after the first Monday of July, eighteen hundred and forty-eight, or until all the cases on the calendar be sooner heard, or a sufficient opportunity be given for the hearing thereof.
$ 12. (Amended 1849.) Special terms and circuit courts, how continued.
The special terms and circuit courts appointed to be held in the first judicial district at any time hereafter, before the first day of July, eighteen hundred and forty-eight, shall be
respectively continued from the first Monday of each month to the third Saturday thereafter, until and including the third Saturday after the first Monday of July, eighteen hundred and forty-eight, or until all the cases ready thereat for hearing or trial be sooner heard, or otherwise disposed of.
a. Laws of 1852, cap. 374, p. 591, provide," In addition to the circuit courts now authorized to be held in the city and county of New York, sittings for the trial of issues of fact triable by a jury may be had in said city and county, at such times as the chief judge of the court of appeals may appoint; and all existing statutes rel. ative to the circuits in the first district are to apply to such sittings," and that several circuits or circuits and sittings, may be held at the same time.
$ 13. (Amended 1849.) General and special terms in firstdistrict.
In addition to the courts already required by law, there shall be held on the first Monday of September, eighteen hundred and forty-eight, a general and special term of the supreme court, and a circuit court in the first judicial district, by such judges as the governor shall, by appointment, in writing, designate; which terms and circuit court shall be exclusively devoted to the determination of suits and proceedings in the supreme court, commenced before the first day of July, eighteen hundred and forty-eight.
$ 14. (Amended 1849.) Terms how long continued.
The terms and circuit court, mentioned in the last section, shall each be continued in each month, except October and January, from the first Monday to the third Saturday thereafter, inclusive, until the fourth Saturday in February, eighteen hundred and forty-nine, or until the suits and proceedings mentioned in the last section, ready for hearing at such courts, shall be sooner determined.
§ 15. In case of disability, governor may assign other judges.
If the judges assigned to hold such general or special terms or circuit courts, or any of them, be unable, by reason of sickness or judicial engagements elsewhere, to sit until the close thereof, the governor shall assign other judges, not actually engaged in holding court, to take their places respectively.
$ 16. When cause passed, how placed on the calendar.
When a cause, placed upon a calendar of a court of record in the city of New York, shall be regularly called and passed, without a postponement by the court for good cause shown, it shall thenceforth take its place on the same or any future calendar, as if the date of the issue were the time when it was thus passed.
$ 17. Party to state date of issue.
In the case mentioned in the last section it shall be the duty of the party placing a cause upon the calendar, for a subsequent term, to state the date of the issue, as above prescribed ; and if he omit to do so, by reason whereof the issue retains its priority on the calendar, the court on the application of the adverse party, or of its own motion, may strike the cause from the calendar.
§ 18. Act takes effect immediately.
This act shall take effect immediately, except that section two shall take effect at the same time with the Code of Procedure.
RULES OF COURT.*
COURT OF APPEALS.
ADOPTED MAY 25, 1849.—AMENDED APRIL 7, 1852.
Ordered, That the following rules for governing the practice in this court, numbered from I. to XIX., both inclusive, be adopted and published.
RULE I. When the appeal is from a judgment, the return of the clerk of the court below shall consist of certified copies of the notice of appeal, and the judgment roll. When the appeal is from such an order as is mentioned in the eleventh section of the code of procedure, the return shall consist of certified copies of the notice of appeal, the order appealed from, and the papers on which the court below acted in making the order.
RULE II. The appellant shall cause the proper return to be made and filed with the clerk of this court within twenty days after the appeal shall be perfected. If he fail to do so, he shall be deemed to have waived the appeal; and on an affidavit proving when the appeal was perfected, and a certificate of the clerk that no return has been filed, the respondent
*a. No general rule or order of the court of appeals, or of the supreme court, shall be of any force or effect until it shall have been published in the newspapers at Albany in which legal notices are by law required to be published, once in each week for three successive weeks. [Laws of 1847, cap 470, p. 639, s. 4.]
6. The rules of the court ought not to be used for purposes of oppression, or in order to bring about a determination of the
case upon techicalities, at the expense of the substantial merits. Micklethwaite v. Rhodes, 1 Barb., 57.
may enter an order with the clerk dismissing the appeal for want of prosecution, with costs; and the court below may thereupon proceed as though there had been no appeal.
See note to section 328 of code.
a. An affidavit of the respondent is sufficient to prove when the appeal was perfected.
b. Unless the respondent can show some delay or inconvenience in not making the return in pursuance of this rule, or not serving the copies of the case as required by rule 7, the defaults taken under those rules should be relieved against upon terms, in all cases where it appears that the appeal is brought in good faith. Waterman v. Whitney, 7 Pr. R., 407.
c. The dismission, by the court of appeals, of an appeal for want of prosecution, is not in judgment of law an affirmance of the judgment appealed from (Watson v. Husson, 1 Duer, 242). The only effect of such a dismission is to replace the judgment in its former condition, leaving its merits still open to examination upon a second and further appeal (ib.) Nor is the barring of an appeal by the lapse of time an affirmance of the judgment (ib.) To affirm a judgment, is by a judicial sentence of an appellate court to declare its validity ; and it is a legal solecism to say that a judgment has been affirmed, when the question of its validity is exactly that which the appellate court refused to consider. A court saying an appeal shall be dismissed, is not saying the judgment appealed from is either valid or erroneous, and no court has a right to say the judgment has been affirmed rather than that it has been re. versed. 1b.
See note to section 339 of the code, as to when the appeal is "perfected."
d. When the printed case or error-book does not show a return made by the clerk below, the appellate court has no authority to hear the argument. The People v. Barron, 6 Pr. R., 81; Lansing v. Russell, 4 ib. 213. See note to rule VII. infra.
RULE III. If the return made by the clerk of the court below shall be defective either party may, on an affidavit specifying the defect, apply to one of the judges of this court for an order that the clerk make a further return without delay. See note to section 328 of the code,
RưLE IV. The attorneys and guardians ad litem of the respective parties in the court below, shall be deemed the attorneys and guardians of the same parties respectively in this court, until others shall be retained or appointed, and notice thereof shall be served on the adverse party.
RULE V. In all calendar causes a case shall be made by the appellant, which shall consist of a copy of the return of the clerk, and the reasons of the court below for its judgment, if the same can be procured. If the case is voluminous, an index to the pleadings, exhibits, depositions, and other principal matters shall be added.
Rule VI. All cases and points, and all other papers furnished to the court in calendar causes, shall be printed on white writing paper, with a margin on the outer edge of the leaf not less than one and a half inch wide