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York, or in un assistant justices' court of that city, or in a justices' court of any of the cities of this state.
An appeal will lie from a decree made in the supreme court in an action pending in the court of chancery, when the new Constitution took effect, and which, by force of the Constitution became vested in the supreme court. The Farmers' Loan and Trust Company vs. Carroll, 2 Com. 566.
An appeal may be taken on the same day the judgment roll is filed, before the hour of adjustment of costs. Blydenburgh vs. Cotheal, 5 How. 200.
So an appeal will lie from an order of the supreme court reversing a final decree of the surrogate, in a proceeding for an account, and directing the proceedings to be remitted to the surrogate with instructions. Wagener ex'r &c. agt. Reily and others, 4 How. 195; S. C., 1, C. R. 130; Messerve vs. Sutton et al., executors, 3 Com. 546.
Appeals taken prior to the 1st of July, 1848, under the judiciary act of December, 1847, from a decision of the supreme court upon bill of exceptions, will lie to this court. Butler et al. vs. Miller; 1 Coms. 428, S. C. 3 How. 339.
Appeals will not lie to this court from decisions in the supreme court made by one justice at a special term. Gracie vs. Freeland, 1 Coms. 228; S. C. 3 How, 218. The Mayor &c. of New-York vs. Schermerhorn et al. 3 How. 334; The People, ex. rel. Griffin vs. Steele and others, trustees &c., 2 Barb. 554.
But appeals from judgments rendered in the supreme court before the code took effect, must be brought according to the old law. Rice vs. Floyd, 1 Coms. 608; S. C., 3 How. 366.
An appeal will not lie from the decision of the supreme court on a case; there must be a special verdict or bill of exceptions. Wright vs. Douglass, 3 How. 418; Sturgis vs. Merry, 3 How. 418; Livingston vs. Radcliff, 2 Com. 189; S. C., 3 How. 416; King vs. Dennis, 3 How. 419.
The section as last amended, allows appeals to be taken to the court of appeals, in a greater number of cases than formerly. The principal cases denying appeals, are the following: Candee vs. Lord, 2 Coms. 269; Lan. sing et al. vs. Russell et al., id. 563; Cruger vs. Douglass et al., id. 571; Selden vs. Vermilyea, 1 Coms. 534; S. C., 3 How. 338; Tilley vs. Philips, 1 Coms. 610; S. C., 3 How. 364; Grover vs. Coon, 1 Coms. 536; S. C., 3 How. 341; Selden vs. Vermilyea, 1 Com. 534; S. C., 3 How. 338; Van De. water vs. Kelsey, 1 Com. 533; S. C., 3 How. 338; Marvin vs. Seymour, 1 Com. 535; S. C., 3 How. 341; Harris agt. Clark et al., executors, 4 How.
Lansing and others agt. Russell and others, id. 213; Cruger vs. Doug. lass and others, id. 215; Duane vs. The Northern Railroad Company, id. 364; Anonymous, id. 80; Carpenter agt. Carpenter, id. 139; S. C., 2 Code Rep. 83; Dunham and another agt. Nicholson, 4 How. 140; Swarthout and others agt. Curtis and others, 5 How. 198; Enós and others agt. Thomas & Hunter, id. 359; McMahon and wife agt. Harrison, id. 360; Blair vs. Dil
luye, 3 How. 422; Lake agt. Gibson, id. 420; S. C., 2 Com. 188; Sherman et al. vs. Felt et al., 2 Com. 186; S. C., 3 How.425; Sherman et al. vs. Dag. gett and Green, id. 426; Hazelton and wife vs. Wakeman et al., id. 357; Spalding vs. Kingsland, id. 337; Wakeman vs. Price, 3 Com. 334.
See sections 323 to 343 inclusive, and notes. May re- $ 12. The court of appeals may reverse, affirm, or momodify
dify the judgment or order appealed from, in whole or in judgment
part, and as to any or all of the parties; and its judgment pealed
shall be remitted to the court below, to be enforced acAmended cording to law.
After a remittitur has been regularly sent to the court below, this court loses jurisdiction of the cause. Dresser vs. Brooks, 2 Com. 559; S. C., 4 How. 207; Martin vs. Wilson, 1 Com. 240; Frazer et al. vs. Western,
3 How. 235.
But the court does not lose jurisdiction until the remittitur is actually filed with the clerk of the court below. Burkle vs. Luce, 1 Com. 239; S. C., 3 How. 236.
Where the judgment of the court below is reversed by the default of either party, the remittitur should not be sent to the court below unless this court shall otherwise direct, until ten days after notice of the affirmance or reversal shall have been served on the attorney of the party in default. Lyme vs. Ward, 1 Com. 531. Rule 17 of Court of Appeals.
Where the appeal is dismissed the code does not authorize a remittitur. McFarlan agt. Watson, 4 How. 128.
See Rules of the Court of Appeals 11, 16, 17. Terms of § 13. There shall be four terms of the court of appeals, in
each year, to be held at the capitol in the city af Albany, on
the first Tuesday of January, the fourth Tuesday of March, 1849, 1851.
the third Tuesday of June, and the third Tuesday of September, and continued for as long a period as the public interests may require.
Additional terms shall be appointed and held at the same Preference
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.
A motion upon notice will not be granted by default, where it interferes with the power of the court in controlling their calendar. Crain, adm's, agt. Rowley, 4 How. 79; Wilkin and another agt. Pearce, id. 26.
Where a default was opened the court imposed as conditions, payment of the taxable costs of the term and of opposing the motion, and a counsel fee
of fifty dollars for attending prepared to argue the cause. Slade vs. Warren, 1 Com. 431.
§ 14. The concurrence of five judges is necessary to pro- Number of nounce a judgment. if five do not concur, the case must be judgment. re-heard. But no more than two re-hearings shall be had, and if, on the second re-hearing, five judges do not concur, the Amended
1849, 1851, judgment shall be affirmed.
Under the new Constitution of this State, 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 vs. Delamater, 1 Com. 17
Where judgment is pronounced in open court without any dissent at the time, neither party can attack such judgment on the ground that five judges did not concur in their private consultations. Mason agt. Jones and others, 5 How. 118; S. C., 3 Com. 375. $ 15. If at a term of the court of appeals, proper and Sheriffs to
provide convenient rooms, both for the consultation of the judges rooms, &c. 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 1849. 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. The court of appeals may be held in other buildings Court may
be adjournthan those designated by law as places for holding courts, and ed to places
those desig. at a different place in the same city from that at which it is appointed to be held. Any one or more of the judges may adjourn the court, with the like effect as if all were present.
nated by law. Passed 1819. Amended 1951.
as to terms
ness of the courts re
Oyer and Terminer.
courts repealed, and order of supreme court fixing the
terms, &c., abrogated. 18. General terms prescribed. 19. Number of judges to give judgment. 20. Special terms, circuit courts, and courts of oyer and terminer,
miner; how appointed.
28. Rooms, fuel, &c.; how furnished. Existing § 17. [Sec. 15.1 All statutes now in force, providing for provisions the designation of the times and places of holding the geand busineral and special terms of the supreme court, and the circuit pealed
courts and courts of oyer and terminer, and of the judges who of supreme shall hold the same, are repealed, from and after the first day court fixing terms, &c. of July, one thousand eight hundred and forty-eight; and abrogated.
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.
The supreme court as now organized has the jurisdictional powers of the late supreme court and court of chancery combined, and this jurisdiction extends throughout the state. Sherman et al. vs. Felt et al., 2 Com. 186; S. C. 3 How. 425; Blackmar agt. Van Inwager, 5 How. 367.
Special terms cir
§ 18. [Sec. 16.) At least four general terms of the su- General preme court shall be held annually in each judicial dis-scribed. trict, and as many more as the judges in such district Amended shall appoint, at such times and places as a majority of the judges of such district shall appoint.
§ 19. [Sec. 17.] The concurrence of a majority of the Number of judges holding a general term, shall be necessary to pro- give judg. nounce a judgment. If a majority do not concur, the case shall be re-heard.
§ 20. [Sec. 18.] There shall be at least two terms of the circuit court and court of oyer and terminer held annually cuit courts in each of the counties of this state, and as many more terms of thereof, and as many special terms as the judges of each prescribed. judicial district shall appoint therein, but at least one amended 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.
§ 21. (Sec. 19.) Circuit courts, and courts of oyer and courts and terminer, shall be held at the same places, and com- minerheid menced on the same day. $ 22. [Sec. 23.] The governor shall, on or before the first
Designaday of May, one thousand eight hundred and forty-eight, by times and appointment in writing, designate the times and places of holding holding the general and special terms, circuit courts, and made. courts of oyer and terminer, and the judges by whom they Amended shall be held; which appointment shall take effect on the first day of July thereafter, and shall continue until the thirty first day of December, one thousand eight hundred and forty-nine. The judges of the supreme court of each district shall, in like manner, at least one month hefore the expiration of that time, appoint the times and places of holding those courts for two years, commencing on the first day of January, one thousand eight hundred and fifty, and so on, for every two succeeding years, in their respective districts.
together. Amended 1849.