inferior court unless the case involves great interests, or a principle of law upon which several cases depend. Purchase v. Jackson, 14 How. 230; S. C. 1 Hilt. 357; sub nom. Jackson v. Purchase; Palmer v. Moeller, 9 Abb. 20, note; S. C. 19 How. 322; 2 Hilt. 421. Where the decision of the common pleas on the question presented is in conflict with a decision of the supreme court of the first district, an appeal to the court of appeals should be allowed. Clapp v. Graves, 2 Hilt. 243; S. C. 9 Abb. 20. d. Summary proceedings.-Judgment upon review of summary proceedings under the landlord and tenant act, may be appealed to the court of appeals. People ex rel. Clute v. Boardman, 4 Keyes, 59, (66.) Where upon the return of a certiorari to review the proceedings of assessors, the supreme court held that the assessment was legal; on an appeal therefrom the court of appeals reviewed the case on the merits. People ex rel. Western R. R. Corporation v. Assessors of City of Albany, 40 Ñ. Y. (1 Hand), 154. e. Motion to set aside judgment.In a case where the defendant moved to set aside a judgment on the ground that he was not served with process, and that the appearance for him was unauthorized, the supreme court refused to set aside the judgment, but left the party to his action; and this court dismissed the appeal from such order. It is not a "substantial right" to have a regular judgment set aside on motion. Foote v. Lathrop, 41 N. Y. (2 Hand), 358; S. C. below, 53 Barb. 183. V. UNDER SUBDIVISION 4. Sub. 4. An appeal lies to this court from an order denying a motion to change the place of trial where the action is an equitable one for an injunction to restrain the erection of a bridge across a public street, and where the plaintiff alleges an apprehended injury to his premises. Ct. App. 2 Albany Law Journal, 79, March, 1870, Leland v. Hathorn; S. C. 9 Abb. N. S. 97. For the manner in which Sub. 4 was en acted, see ante, 33. § 12. [12.] May reverse, affirm or modify judgment or order appealed from. The court of appeals may reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to any or all of the parties; and its judgment shall be remitted to the court below, to be enforced according to law. Union Bank v. Bush, 36 N. Y. (9 Tiff.), 638; S. C. 3 Trans. App. 241; Rev'g S. C. 8 Abb. 152; sub nom. Hammond v. Bush. I. Powers of the court.-The provisions of the constitution will be found ante pp. 28, 29, §§ 2, 3, 4, 5. The statutes relating to this subject are given ante pp. 32, 33, §§ 1, 2, 3, 4, 5, 6, 7, 8, 9. See also, the notes to § 333. Post. 654 II. REMITTITUR. a. Effect of remitting cause. After a cause has once been remitted, this court loses all jurisdiction thereof. The only remedy is by a new appeal. Dresser v. Brooks, 4 How. 207; S. C. 2 N. Y. (2 Comst.), 559; 2 Code R. 130. After the remittitur has issued from this court, under its seal, the court below has jurisdiction of the cause, though the remitti | tur is not actually filed with the clerk of the latter court. Judson v. Gray, 17 How. 289, (296.) b. Criminal case.-The court of appeals in remitting the record in a criminal case, may direct the court below to sentence the prisoner anew, if the day fixed for the execution of the sentence has passed. Walters v. The People, 19 Abb. 212; S. C. before, 32 N. Y. (5 Tiff.), 147. See 1 Wait's Dig. 94, 108, 109; Laws 1870, ch. 203, § 6. c. Final disposal of appeal.- After a return has been filed, or any order made, which finally disposes of the appeal, it is proper to remit the proceedings to the court below. Dresser v. Brooks, 4 How. 207; SC 2 N. Y. (2 Comst.), 559; 2 Code R. 130. On the dismissal of an appeal, a remittitur is the regular process to restore the cause to the court below to be enforced. Langley v. Warner, 2 Code R. 97. § 13. [13.] (Am'd, 1851, 1852, 1858, 1859, 1862, 1863, 1865, 1869, 1870.) Terms of the court. Preference of causes. There shall be four terms of the court of appeals in each year, to be held at the capitol, in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the last Tuesday of September, and continued for as long a period as the public interests may require. But the judges of said court may, in their discretion, appoint one of said terms in each year to be held in the city of New York. Additional terms shall be appointed and held at the same 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. On a second and each subsequent appeal to the court of appeals, or when an appeal has once been dismissed for defect or irregularity, the cause shall be placed upon the calendar as of the time of filing the first appeal, and may be noticed and put on the calendar for any succeeding term; and whenever, in any action or proceeding in which the people of this state, or any state officer, or any board of state officers, is or are sole plaintiff or defendant, an appeal has been or shall be brought from any judgment or order for or against him or them, in any court, such appeal shall have a preference in the supreme court and in the court of appeals, and may be moved by either party out of the order on the calendar. And actions in which one of two or more plaintiffs or defendants shall have died pending the action, and the pendency of the action prevents a final settlement of the estate of the deceased party, shall be preferred on the calendar. - Terms of court. - As to the times and places of holding the terms of this court, see ante, pp. 28, 29, §§ 1, 2, 3, 4; and also, § 16, post. 37. Preference of causes.—See the notes to § 257, post. See also, Rule 20, of Court of Appeals, adopted July 6th and Oct. 28th, 1870, post. §14. [14.] (Am'd, 1849, 1851, 1867.) Number of judges who may give judgment. The concurrence of five judges is necessary to pronounce a judgment. If five do not concur the case must be reheard. But no more than two rehearings shall be had, and if on the second rehearing five judges do not concur, the judgment shall be affirmed. When five of the judges do not concur, and a rehearing of the case is ordered, the judges shall file the opinions read by them with the reporter of the court, but such opinions shall not be published. No person other than the judges of the court, the reporter of the court, or the counsel or attorney of either of the parties to the action, shall have access to or a copy of the said opinions, but such counsel or attorney may have access to and a copy thereof. a. Precedent.-A judgment of the court of appeals should be held to be a decision, not only upon the judgment, but of the precise proposition decided by the court below. Green v. Clark, 13 Barb. 57. Where there is a judgment by this court, the judges being equally divided, the decision is not obligatory as a precedent. Morse v. Goold, 11 N. Y. (1 Kern.), 281, (285); The People ex rel. Attorney-General v. Mayor, etc., of New York, 25 Wend. 252, (256). Where the court has a question presented on a second appeal, identical with the one previously before the court, it will not depart from its former decision, although the mem bers of the court were not unanimous in mak ing it. Oakley v. Aspinwall, 13 N. Y. (3 Kern.), 500, (505); see ante, p. 33, § 11, subd. a. b. Quorum.-The court under the former constitution, might be held by less than eight judges, and four might decide a motion. Oakley v. Aspinwall, 3 N. Y. (3 Comst.), 547, (569); S. C. 9 N. Y. Leg. Obs. 45. By the new constitution, Art. VI, § 2, ante, p. 28, five judges form a quorum, and the concurrence of four of them is necessary to a decision. See also, ante, p. 29, Art. VỈ, § 4, as to the commission of appeals. The rule as to a rehearing is changed. Ante, chap. 203, § 1. The cases decided under the old constitution and statutes will be given for | Jones, 3 N. Y. (3 Comst.), 375; S. C. 5 How. convenience of reference. 118; 3 Code R. 164. See also The People ex rel. Attorney-Gene ral v. Mayor, etc., of New York, 25 Wend 252 (256.) b. Common law. This section restores the common law as it was understood and acted upon in this state previous to the Code. Mason v. Jones, 3 N. Y. (3 Comst.), 375; S. C. 5 How. 118; 3 Code R. 164. § 15. [15.] Sheriff to provide rooms, etc., for court. If, at a term of the court of appeals, proper and convenient rooms, both for the consultation of the judges 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 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. [16.] (Am'd 1851.) Court may be adjourned to places other than those designated by law. The court of appeals may be held in other buildings than those desig nated by law as places for holding courts, and 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. See ante,321 chap. 203, §§ 1, 2, as to the power of the court to fix the times and places of holding the court. TITLE III. Of the supreme court, circuit courts, and courts of oyer and terminer. SECTION 17. Existing statutory provisions as to terms and business of the courts repealed. 18. General terms prescribed. 19. Number of judges to give judgment. 20. Special terms, circuit courts and courts of oyer and terminer prescribed. 21. Circuit courts, and oyer and terminer held together. 22. Designation of times and places of holding courts, how made. 23. Extraordinary, general and special terms, and oyer and terminer, how appointed. 24. Places of holding the courts. 25. Publication of appointment thereof. 26. When judges not assigned may hold the courts. 27. Duties of judges as to business out of court. 28. Rooms, fuel, etc., how furnished. The new constitution, ante, pp. 29, 30, Art. | examined, as they materially affect some of VI, §§ 6, 7, 8, 9, 10, 11, 13, 14; and the stat `ute, post, p. 38, chap. 408, should be carefully the sections of the Code. Passed April 27, 1870; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: SECTION 1. The general terms of the supreme court, as organized under existing laws, are abrogated from and after the first day of May next; and thereafter all causes and matters then pending in such general terms, or which according to law might be brought before them, shall be cognizable before the general terms organized under this act. Provided, nevertheless, that the said general terms of the supreme court as now organized shall meet, on some day to be designated by the justices composing the same, for the purpose of deciding all matters pending before them on the said first day of May, and that appeals may be taken from the judgments and orders entered on such decisions, in the same manner as in like cases from the judgments and orders of the general terms organized under this act. § 2. The state is hereby divided into four departments. The first department shall consist of the first judicial district; the second department of the second judicial district; the third department of the third, fourth and sixth judicial districts; and the fourth department of the fifth, seventh and eighth judicial districts. The general terms shall be held in each year in the first department at the court-house in the city of New York, on the first Tuesdays in January, February, April, June, September and November; in the second department at the court-house, in the city of Brooklyn, on the second Tuesdays in January, April, September and December; and at the court-house in the city of Poughkeepsie on the second Tuesday in June; in the third department at the capitol, in the city of Albany, on the first Tuesdays in February and October; at the court-house in the village of Plattsburgh, in the county of Clinton, on the first Tuesday in July; at the court-house in the city of Elmira, on the first Tuesdays in April and September; at the court-house in the city of Binghamton, on the first Tuesdays in June and December; and at the courthouse in the city of Ogdensburgh, on the first Tuesday of November; in the fourth department at the court-house in the city of Syracuse, on the first Monday in May and the second Monday in November; at the court-house in the city of Oswego, on the first Monday in October; at the court-house in the city of Rochester, on the first Mondays in January, March and September; and at the court-house in the city of Buffalo, on the first Mondays in February and June. § 3. The governor, by a writing to be filed in the office of the secretary of state, shall, immediately after the passage of this act, designate from the whole bench of justices of the supreme court a presiding justice and two associate justices for each of said departments to compose the general term therein. After such first designation of presiding and associate justices, the judicial force herein provided for the holding of such general terms shall be maintained and supplied from time to time as may be necessary, and for that purpose, other presiding and associate justices shall from time to time be designated, and such other and further designations shall be made by the governor in manner aforesaid. In all cases any person designated as presiding justice shall act as such during his official term; and any person designated as associate justice shall act as such for five years from the thirty-first of December next after the time of his designation, or until the earlier close of his official term. The governor shall in like manner, as aforesaid, designate presiding and associate justices to sit in such general terms as often as vacancies therein shall occur for the unexpired terms. § 4. In case no presiding justice shall be holding a general term, the associate justice present at the time and place appointed for present having the shortest time to serve shall act as presiding justice until the presiding justice shall attend, and, in case one or both of the associate justices shall not be present at the time and place appointed for holding a general term, the presiding justice present may select any justice or justices of the supreme court to hold with him such general term until such associate justice or justices shall attend. § 5. The general terms shall have all the powers and jurisdiction which, under existing laws, now belong to the general terms of the supreme court; and all laws relating to general terms, as now organized within the judicial districts, and to the hearing of appeals from judgments pronounced and orders made within such districts, if not inconsistent with the constitution or this act, shall apply, so far as the same are applicable, to judgments pronounced and orders made within the judicial departments, and to the general terms instituted by this act. § 6. Causes and matters pending in any general term instituted by this act may be entitled in the supreme court. The concurrence of two justices shall be necessary to pronounce a decision. If two shall not concur, a re-argument may be ordered. In case of such disagreement, when any one of the three justices shall not be qualified to sit, the cause may be directed to be heard in another department. The associate justice, designated to any department, shall be competent to sit in the general term of any other department, in place of any justice in such other depart ment. § 7. To prevent the failure of circuit courts, special terms and courts of oyer and terminer, as the same have been heretofore appointed for the years eighteen hundred and seventy and eighteen hundred and seventy-one, in consequence of the designation to be made of justices for service in the general terms, as provided by this act, it shall be the duty of the governor, on the request of a justice in any judicial district, to assign justices to hold such circuit courts, special terms and courts of oyer and terminer within such district; provided, however, that the justices in any district may themselves make provision for the holding of such courts. At least one month before the expiration of the year eighteen hundred and seventy-one, the justices of the supreme court resident in each judicial department mentioned in this act shall appoint the times and places of holding special terms, circuit courts and courts of oyer and terminer within their department, for two years commencing on the first day of January, eighteen hundred and seventy-two, and the like appointment shall be made for every two succeeding years thereafter. § 8. Pursuant to the twelfth section of the said sixth article of the constitution, it shall be the duty of the governor, whenever the public interest shall require, to designate one or more judges of the superior court, or court of common pleas of the city and county of New York, to hold circuits and special terms of the supreme court in that city; such designation shall be in writing, and shall specify the time and place of holding any such circuit or special term. When a case or bill of exceptions shall be made in any cause tried at such circuit or special term, the same shall be settled before the judge holding the same, and the review shall be had at a special or general term of the supreme court in the same manner, and with the same effect, as if such circuit or special term had been held by a justice of the supreme court. § 9. The justices of the supreme court shall receive an annual compensation of six thousand dollars each, payable quarterly, in lieu of all other compensation, except that they. shall receive, in addition to such stated salaries, a per diem allowance of five dollars per day for their reasonable expenses when absent from their homes and engaged in holding any general or special term, circuit court or court of oyer and terminer, or in attending any convention, as hereinafter provided, to revise the rules of said court, and no greater sum shall be paid to the chief judge or any associate judge of the court of appeals, or to any commissioner of appeals, than five dollars per day for their reasonable expenses, when absent from their homes and actually engaged in holding any court of appeals, or commission of appeals, and all provisions of law inconsistent with the provisions of this act are hereby repealed. But this section shall not be construed to diminish the compensation now received by the justices of the supreme court of the first and second judicial districts. § 10. All appeals and other matters proper to be brought before any general term shall be heard and determined in the department in which the judgment or order appealed from shall be entered, or in which the matter brought up arose, unless two of the general term justices in such department shall be incapable of sitting on the appeal or acting in the matter, in which case the appeal or other matter shall be ordered to be heard in some other department; and in that case such appeal or other matter shall be heard in the department to which the same shall have been ordered as aforesaid. § 11. Each general term shall be attended by the sheriff of the county in which any session shall be held, or one of his deputies, and by two constables or police officers, to be summoned by the sheriff; and by a crier for courts within the county, and by the county clerk or his deputy, all of whom shall act under the direction of the court or of the presiding justice; and the sheriff of the county shall see that the room in which the general term shall be held is properly heated, ventilated, lighted, and kept comfortable, clean and in order; and he shall provide the court with necessary stationery during its sittings. § 12. The fees of criers, sheriffs, constables and police officers for attending general terms, and all expenses incurred by sheriff's under and pursuant to the preceding section of this act, shall be audited by the comptroller, and be paid out of the treasury of the state. All fees and proper charges of clerks for services rendered at or preparatory to any general term, not legally chargeable to attorneys or parties in cases or matters brought before the general term, shall be a county charge. § 13. All rules of the supreme court now in force, not inconsistent with the constitution or any statute of the state shall remain in force until abolished or altered by the general term justices, the chief judges of the superior courts of cities, the chief judge of the court of common pleas of the city of New York and of the city court of Brooklyn, in convention assembled at the capitol in the city of Albany. A convention of such justices and chief judges shall be held at the place aforesaid, on the first Wednesday in August, eighteen hundred and seventy, and every two years thereafter; and such convention shall revise, alter, abolish and make rules, which shall be binding upon all courts of record so far as they may be applicable to the practice thereof. A majority of said justices shall constitute a quorum to do business in the premises, whether said. chief judges shall be present or absent; but each justice and chief judge shall be entitled to vote on all matters which shall come before the convention. § 14. The governor may, whenever in his judgment the public good shall require it, appoint extraordinary general terms, circuit courts, and special terms of the supreme court and courts of oyer and terminer, and he shall designate the time and place the same shall be held, and name the justice who shall hold the extraordinary circuit or special term, or preside in such court of oyer and terminer, and shall give notice of such appointment in such manner as he may believe the public good requires. |