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county, the venue having been fixed in that of the plaintiff, was nevertheless sustained as valid under the general powers of the officer in question under the old practice, as saved by sec. 403.
The general powers of county judges, in this respect, enlarged in some degree by the Code, (particularly in reference to the granting of injunctions, and to the proceedings supplementary to execution) remain, where such has not been the case, substantially as they were before, under the then "existing practice,' and are neither affected nor enlarged by that measure: Merritt v. Slocum, 1 C. R. 68; 3 How. 309. It was accordingly held in that case that the powers of a county judge did not extend to the hearing and deciding of motions, as such, in actions pending in the supreme court, but merely to the granting of orders obtainable as of course and without notice. A general stay of proceedings until after the hearing of a motion, granted by an officer of this description, without notice to the opposite party, was also set aside in Schenck v. McKie, 4 How. 246, as void for want of jurisdiction.
It will be observed on reference to sec. 401, that, in the first district, the powers of judges at chambers or out of court are greatly extended, and are in fact sufficiently large to include the granting of interlocutory orders of every description, whether upon or without notice, with the single exception of new trials upon the merits. The powers of the judges out of court do not, however, extend to the granting of judgment under any circumstances, except in the single instance of an application under sec. 247. In all other cases the motion must be made to the court sitting as such, and cannot be otherwise entertained: Aymar v. Chase 1. C. R. (N. S.) 330.
Although the exercise of the office of judge on the part of inferior officers, by delegation, is confined within strict local limits, the powers of the judges themselves are unrestricted : Constitution, art. 6, sec. 6. Any judge of the supreme court is, therefore, competent to act in the place of any other, in the event of his inability to perform the peculiar duties assigned to him (sec. 26) and every judge moreover possesses the inherent power to make orders of course in any suit whatever, pending in any part of the state, irrespective of the district, in which he for the time being exercises his functions; and orders so made by him are equally binding on all parties, as they would
have been if made by a judge of that particular district. By section 401 a restriction is, however, imposed upon these powers, as regards the making of orders upon notice, which can only be applied for in the district within which the action is triable, or, where the county fixed upon for the trial is a border county, then in some county in the next district, immediately adjoining thereto. This latter power does not, however, extend to the first district, within which all motions must be made in actions triable therein. Any proceeding commenced before one of the judges of that district may, under the especial provisions of section 27, be continued before another with the same effect. Although the general jurisdiction and offices of the judges of these courts remain unaltered by the Code, the previous arrangements as to the courts to be held by them are repealed, and fresh provisions substituted by title III. of part I. of that measure.
By section 18 it is prescribed that at least four general terms, and more if necessary, shall be held annually in each judicial district, at such times and places as a majority of the judges of such district shall appoint; and by section 20 it is made imperative that at least two circuit courts and courts of oyer and terminer, and one special term, shall be held yearly in every county throughout the State, (Fulton and Hamilton being considered as only one county for such purpose,) with similar powers to the judges to appoint additional terms for such purposes. The times and places for holding such terms were originally fixed by the governor, and subsequently by the judges, and are for the future to be from time to time made the subject of special appointment by the latter; such appointment to be made by them at least one month before the expiration of every second year, and to be for the two years commencing on the first of January then next following. The appointment of those terms for the two years commencing on the first of January, 1852, will be found at the end of the volume.
Whenever the justices of any one particular district are under personal disqualification in respect of any cause pending therein, the court, under the powers of c. 15 of the laws of 1850, possesses the power of removing that cause into any other adjoining district.
In addition to the above regular terms and circuits, the governor of the state possesses also, under sec. 23, the power of making additional appointments for such purpose,—the same to be published in the state paper as prescribed by sec. 25. By c. 1. of laws of 1850, and sec. 459 of the Code, as last amended, his powers in this respect are greatly enlarged, and he is enabled to provide for the case of a term being in danger of failing, and also for that of any one branch of the court being overburdened with business; those powers in the last instance extending to the assignment of other judges for the purpose of disposing of the arrears.
As before stated, the appeal from the decisions of the general term of this court, lies to the court of appeals in all cases, with the single exception of causes originally commenced in a justices' or other court of lowest jurisdiction, in which, (assuming that the apparent misprint in section 11, after noticed, has not changed the law upon the subject) this court is the ultimate tribunal. The decisions of the surrogates' courts, and also of all those subsequently enumerated in this portion of the work, with the exception of those of the superior court and court of common pleas of the city of New York, are likewise reviewable by it in its appellate capacity; the appeal lying in the first instance from the decisions of the surrogate, and also from those of the county and municipal courts; and in the second, after a previous review by the former of the two last tribunals, from the justices' and other courts of lowest jurisdiction.
The practice of this court, and of the New York and county courts, is regulated by general rules made by the judges of the court, under the provisions of sec. 470 of the code, and which are henceforth to be revised every two years, under the last amendment of that sentia
Page 24, at end of page. The revision for 1852 having recently taken place, the effect of the alterations made on that occasion, is now incorporated into the text of this volume, by means of additions similar to the present. The changes effected are few in number, and leave the practice substantially as it was, with some slight modifications, noticed under their proper heads. One effect of these changes is to reduce the aggregate number of Rules from 92 to 90, and to change the enumeration of the different provisions from No. 16, upward. Rules 17, 18, 24, 57, and 88, of 1849, are either wholly omitted, or incorporated in other provisions ; Nos. 87, 88, and 89, as they now stand, are, on the contrary, new insertions.
The arrangement of subjects remains, however, the same, and the altered enumeration will doubtless soon become fami
Although, in strictness, these courts are of inferior authority and jurisdiction to those mentioned in the next division, yet, inasmuch as their operation is of wider scope, extending throughout the whole of the state, and as the definition of their jurisdiction is, to a certain extent, a definition of that of the New-York tribunals also, which last exercise that jurisdiction in its full extent within their peculiar limits, it has been thought better to follow the order of arrangement adopted in the Code itself, and to consider the peculiarities and powers of these courts in the first instance, before treating of those of the metropolitan district.
The jurisdiction of these Courts is of a special and statutory nature, and is thus expressly defined by sec. 30 of the Code as last amended.
§ 30. The county court has jurisdiction in the following special cases, but has no original civil jurisdiction except in such cases : 1. Civil actions in which the relief demanded is the
recovery sum of money not exceeding five hundred dollars, or the recovery of the possession of personal property not exceeding in value five hundred dollars, and in which all the defendants are residents of the county in which the action is brought at the time of its commencement: subject to the right of the supreme court upon special motion for good cause shown to remove any such action to the supreme court before trial.
2. The exclusive power to review, in the first instance, a judgment rendered in a civil action by a justice's court in the county, or by a justices' court in cities, and to affirm, reverse or modify such judgment.
3. The foreclosure or satisfaction of a mortgage, and the sale of mortgaged premises situated within the county, and the collection of any deficiency on the mortgage remaining unpaid, after the sale of the mortgaged premises.
4. The partition of real property situated within the county.
5. The admeasurement of dower in land situated within the county.
6. The sale, mortgage or other disposition of the real property situated within the county, of an infant or person of unsound mind.
7. To compel the specific performance, by an infant heir, or other person, of a contract made by a party who shall have died before the performance thereof.
8. The care and custody of the person and estate of a lunatic or person of unsound mind, or an habitual drunkard, residing within the county.
9. The mortgage or sale of the real property situated within the county, of a religious corporation, and the disposition of the proceeds thereof.
10. To exercise the power and authority heretofore rested in such courts of common pleas, over judgments rendered by justices of the peace, transcripts of which have been filed in the offices of the county clerks in such counties.
11. To exercise all the powers and jurisdiction conferred by statute upon the late courts of common pleas of the county, or the judges or any judge thereof, respecting ferries, fisheries, turnpike roads, wrecks, physicians, habitual drunkards, imprisoned, insolvent, absent, concealed or non-resident debtors, gaol liberties, the removal of occupants from state lends, the laying out of railroads through Indian lands, and upon appeal from the determination of commissioners of highways, and all other powers and jurisdiction conferred by statute, which has not been repealed, on the late court of common pleas of the county, or on the county court, since the late courts of common pleas were abolished, except in the trial and determination of civil actions; and to prescribe the manner of exercising such jurisdiction, when the provisions of any statute are inconsistent with the organization of the county court.
12. To remit fines and forfeited recognizances, in the same cases and like manner as such power was given by law to courts of common pleas. But the first subdivision of this section shall not apply to the county court of the counties of Kings and Erie.
13. To grant new trials, or affirm, modify, or reverse judgments in actions tried in such court, upon exceptions or case made, subject to an appeal to the supreme court. But any action or proceeding pending in the county court, in which the county judge is for any cause incapable of acting, may be transferred by the county court to the supreme court, and thereupon the papers therein on file in the county court shall be transmitted to the supreme court in the same district, which shall thenceforth have jurisdiction of such action or proceeding.