1 Edm. Sel. Cas. 568 | N.Y. Sup. Ct. | 1848
The constitution, (art, 6, §6,) provides that any justice may hold a special term, and any
Most of the questions raised on these motions are questions of regularity, which belong to a special term. The motion to set aside the writ of peremptory mandamus, for irregularity, is clearly of that character; so also is the motion to set aside the record filed by the relator. The motion on the part of the relator to set aside the record made up and filed by the defendants, in pursuance of an order at the special term, is in the nature of an appeal from the special to the general term. Before the adoption of the code of procedure, no mode was pointed out for conducting such appeal on the law side of the court. The twentieth section of the judiciary act gave a rehearing in matters of equity, but was silent as to other proceedings. The right, however, to bring up for re-examination before a general term decisions made at a special term, no doubt existed, although it was not regulated by the judiciary act. It cannot be presumed that the decision of a justice holding a special term was final, and beyond the reach of review, because the means for reviewing it were not pointed out. Error will not lie, it has been held, from the special term to the court of appeals. The policy of the constitution cannot be carried out, without occasionally bringing before the general term, for reexamination, proceedings which have been passed upon at a special term. This, I think, might be done before the adoption
The record of judgment made up by the defendants must, therefore, be taken off the files as irregular. As to that made up by the relator, it is of no consequence whether it remains on the files or not, for no writ of error will lie upon it. But under sections nine and ten of chapter two of the supplement to the code, (Laws of 1848, p. 568,) the defendants may have a rehearing of the main question decided at the special term ; and it is only thus, through such rehearing, that the question can be carried to the court of appeals. In the meantime, as the special term has power to issue a peremptory mandamus; as the statute, (2 R> S. 587,) directs that it shall issud without