By the Court, Willard, J.
The constitution, (art, 6, §6,) provides that any justice may hold a special term, and any *557three, of whom a presiding justice shall be one, may hold the general term. The constitution does not prescribe the power to be exercised by a special term. This has been left for legislation. The judiciary act of 1847, section twenty, under which these proceedings were had, seems to contemplate that nothing on the law side of this court should be transacted at a special term but non-cnumerated business—a class of business well understood at the adoption of the constitution. The jurisdiction of the special term, under the present constitution, is less than that possessed by a special term under the constitution of 1821; since by that constitution any one of the justices of the supreme court could hold the said court. It may be doubted whether an issue at law arising on demurrer, can be heard at a special term.
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 *558of the code; but it would be the duty of this court to restrict such re-examination to cases of magnitude and importance. The ninth section of chapter two of the supplement to the code is now in force. It is retrospective as well as prospective. It allows a party aggrieved by an order made at a special term, in an action at law, or in a special proceeding, when it involves the merits of the action or special proceeding, or some part thereof, to appeal therefrom to the court, at a general terrm No such appeal can be taken, unless a justice of this court certifies, in pursuance of the tenth section, that, in his opinion, it is proper that the questions arising on that appeal should bd decided at a general term. The court at a general term, may, on such appeal, reverse, affirm, or modify the order appealed from.- The statute does not fix any limit to the time in which the appeal may be made, nor does it require bail from the appellant; nor does it direct a stay of proceedings pending the appeal The statute is intended as a temporary act. I think the order of Judge Edmonds was erroneous, in requiring a record to be made up, as if the decision had been made by this court on demurrer. That record should be vacated, but without prejudice to the right of the defendants to appeal to this court from the order of the special term granting a mandamus. The other record will not impede the rights of the defendants to appeal. I should incline to allow the defendants, in abandoning their writ of error, to appeal to this court.
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 *559delay; and as there is no power, when the court have awarded it, to stay proceedings upon it, all the orders to that effect in this case must be vacated, and the writ be obeyed. An order must be entered, directing that the order made at the special term, permitting the defendants to make up a record, as upon a demurrer, be vacated, and that the record by them made, on the 16th of March last, be taken from the files of the court; and that the defendants’ application to set aside the relator’s record be denied; and, directing further, that all orders made upon the application of the defendants, staying proceedings on the peremptory writ of mandamus, be set aside, and declared null and void; and that the defendants’ application to set aside the peremptory writ of mandamus be denied, and that said writ be by them forthwith, and without delay, obeyed.