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5. To the hearing and determination of applications for judgment, upon special verdicts :

6. To the hearing and determination of cases reserved for argument or further consideration:

7. To the hearing and determination of all other questions, not assigned to the general terms or circuits, exclusively.

§ 49. The circuits are devoted to the trial,

1. Of issues of fact, now pending or hereafter joined, in actions or proceedings in this court :

2. Of all other questions of fact, ordered by the court to be tried by a jury.

§ 50. A general term must be held by at least three of the judges: and a special term or circuit may be held by one or more of them.

This section is in conformity with the constitution, art. 6,

sec, 6.

It will be observed, that in mentioning the members of the supreme court, they are designated as judges, instead of justices, the more common designation in the statutes. We do this, because a uniform mode of designating judicial officers, is convenient. The constitution uses both judge and justice, as applicable to a member of the supreme court.

66 The state shall be divided into eight judicial districts, of which the city of New-York, shall be one ; the others to be bounded by county lines, and to be compact, and equal in population, as nearly as may be. There shall be four justices of the supreme court in each district, and as many more in the district composed of the city of New York, as may from time to time be

authorized by law, but not to exceed in the whole, such (CIVIL CODE.)


number in proportion to its population, as shall be in conformity with the number of such judges, in the residue of the state, in proportion to its population."

$ 51. The general and special terms and circuits may be held by the judges elected in any of the judicial districts.

The judges of this court, though elected in districts, possess co-ordinate powers throughout the state. Const. art. 6, sec. 6.

$ 52. One of the judges of the first class elected in each district, unless he be a judge of the court of appeals, or elected or appointed to fill a vacancy, or in either of those events, one of the judges of the second class, must preside at a general term.

By the constitution, art. 6, sec. 6,“ provision may be made by law, for designating from time to time, one or more of the justices of the supreme court, who is not a judge of the court of appeals, to preside at the general terms of the said court, to be held in the several districts. Any three or more of the said justices, of whom one of the said justices so designated, shall always be one, may hold such general terms." In

pursuance of this requirement, the provision contained in this section, was introduced into the judiciary act, Laws of 1847, p. 323, sec. 15.

$ 53. If a presiding judge do not attend, any three of the judges present may, by an order entered upon the minutes, designate one of their number, to preside during the absence of a presiding judge.

Conformable to Laws of 1847, p. 282, ch. 170, sec. 1.

$ 54. The concurrence of a majority of the judges holding a general term, is necessary to pronounce a judgment. If a majority do not concur, the case must be reheard.

Taken from Amenderi Code, sec. 19.

It will be seen in the provisions respecting appeals, that the business of the general terms is to review the judgments given at the special terms and circuits, and the reports of referees. The general terms, therefore, are in the nature of courts of appeal. It may, and not unfrequently will bappen, that the judge who rendered the judgment at the special term or circuit, will sit at the general term; and if he do, he will, of course, have a voice in the decision of the cause. If four judges hold the general term, a tie vote will decide the cause, of which the vote of the judge whose judgment is reviewed, may be one. This should not be allowed. The inconvenience of a rehearing is far less than the injustice of a judgment depending upon the mere technical rule, that if the party holdang the affirmative fail in obtaining a majority, his case is determined, while his rights remain undecided. This the Commissioners think objectionable, for the reasons stated in the note to section 34, (p. 23, 24,) in respect to the judgment of the court of appeals.

$ 55. The gereral terms and circuits must be held as loug as, in the opinion of the judge or judges holding them, the public interests require.

§ 56. The judge holding a circuit must at the same time hold a special term, and continue it until the adjournment of the circuit, or longer, if the public interests require; or he may adjourn it to another time and place in the county.

It was provided in the code of 1848, sec. 19, that “ special terms, circuit courts, anıl courts of oyer and terminer, shall be held at the same places, and commenced on the same day.” In the amended code, sec. 21, special terms were stricken out. The Commissioners can conceive no good reason why they should not be held at the time of holding a circuit. In the parts of the state where circuits and special terms are of rare occurrence, it is very convenient to suitors, and adds but little to the labor of the judges, to have a special term when a circuit is held.

§ 57. In addition to these special terms, the court is always open, before each of the judges, for the hearing of motions, applications for judgment upon failure to answer, and upon complaint and answer, and for the trial of issues of law. But a judge who appoints for that purpose a certain day in each week when not sitting at a general term or circuit, is not required to hear a contested motion or trial at any other time.

This section is introduced, to afford greater facilities for the hearing and determination of matters which may be disposed of by a single judge. The distinction between the powers of a judge at special term and at chambers, is rather nominal than real, and the interests of suitors will be greatly promoted by the provision in question.

$ 58. The judges must also 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, must attend for that purpose at the city hall in the city of NewYork, 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.

Taken from original code, sec. 30, and omitted in the umended code. There appears to us a necessity for its resto ration,

$ 59. The times and places of holding the general and special terms and circuits, shall continue as at present prescribed, until the thirty-first day of December, 1850, inclusive, and no longer.

$ 60. There must be as many general terms annually, not less than four in each judicial district, and as many special terms and circuits annually, in each county, as are sufficient for the transaction of the business.

In their first report, p. 29, 30, sec. 16, 18, the Commissioners provided for six general terms in cach district, and for a fixed number of special terms and circuits in each county. Their suggestions in this respect, were adopted by the legislature, in the code of 1818, but were omitted in the amended code, probably for the reason that no fixed rule could be adopted on the subject. There can be no just objection, however, to fixing the criterion proposed by this section, for the guidance of the judges in making the appointments.

61. There must be a general session of the judges of the supreme court at the capitol in the city of Albany, on the first Monday of August, 1851, and on the first Monday of August in every second year thereafter, at which session the judges shall make such general rules as may be necessary, pursuant to section 186, and shall also appoint the times and places of holding the general and special terms and circuits for the succeeding two years, commencing on the first of January thereafter, and designating the judges to hold the same. The appointment so made, must be such, that for each

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