125 N.E. 102 | NY | 1919
This is one of two actions similarly entitled, each brought to recover the immediate possession of real property. It has been tried three times. (See opinion Saranac Land Timber Co. v.Roberts,
William W. Clark, a justice of the Supreme Court in the seventh judicial district, was appointed to hold said Extraordinary Special and Trial Term, and it was held by him pursuant to such appointment. Such term of the Supreme Court so appointed was regularly proclaimed and legally constituted. (People ex rel. *191 Saranac Land Timber Company v. Supreme Court,
There is no provision of the Constitution or general provision of statute which limits the duration of a term of the Supreme Court when once duly called and convened. (People ex rel. Weick
v. Warden of City Prison,
The statement in the proclamation of the purpose of the term does not enlarge or diminish the rights of litigants. It became a term of the Supreme Court with the same jurisdiction that belongs to any other term. (People ex rel. Saranac Land TimberCompany v. Supreme Court, supra.) By the express direction of the proclamation the term was to continue "So long as may benecessary for the disposal of the business which may be broughtbefore it."
A motion was made at such Extraordinary Special Term by the defendant for a new trial of this action on the ground of newly-discovered evidence and also to vacate and set aside the consent of defendant that the action be tried by a referee and also that in case a new trial should be granted and the consent that the action be tried by a referee be not set aside, then for the appointment of a new referee. Such motions were heard and duly submitted for determination. The court granted the new trial but refused to set aside the consent of the defendant to the trial of the action before a referee. It named a new referee, holding in substance and as a matter of law that it was the duty of the court to appoint a new referee. On appeal to the Appellate Division the order was affirmed as modified in a part not material on this appeal. (Saranac Land Timber Company v.Roberts,
The history of that Special Term shows that on June 16, 1917, the day when the motions were finally submitted to the court for decision, an adjournment was taken to a subsequent day and on such day the court was again adjourned until July 28, 1917. On July 28, 1917, no formal action was taken either to adjourn the court sine die or otherwise. It is interesting and significant that the order made following the submission of the motions on June 16, 1917, although dated June 16, 1917, was actually made and entered on July 17, 1917, a day to which the Extraordinary Special Term had not been formally adjourned, all parties apparently assuming that after the submission of the motions the court for the purpose of such motions remained in continuous existence until the final decision thereof.
After the decision of this court (
It is necessary that the times and places of holding *194 courts be fixed in advance that jurors can be drawn therefor, and that notices can be given and the necessary steps taken to obtain jurisdiction of the parties in civil and criminal actions and proceedings.
The Constitution expressly provides that "The justices of the Appellate Division in each department shall have power to fix the times and places for holding the special terms therein, and to assign the justices in the departments to hold such terms; or to make rules therefor." (Constitution, article 6, sec. 2; Judiciary Law, sec. 84.) An Extraordinary Special or Trial Term of the Supreme Court can be called by the governor. (Judiciary Law, sec.
It would not be an exaggeration to say that there are thousands of cases every year in this state, in which motions are made or trials had in court during terms thereof duly appointed and held and in which the decisions or orders therein are not entered, signed, or made until the terms of court at which the motions were so made and issues tried had ceased to exist for the hearing of new business. The terms of court in all or at least part of the state are appointed not only for a particular day but to continue for a fixed period of time or until adjourned without day. (See Special Rules of First Department, Supreme Court; Trial Term, rule 4; Special Terms, rules 1, 4 and 7.)
Many of the cases tried or questions heard at such *195 terms are not and cannot be decided until long after the time when such terms are last formally adjourned.
It is expressly provided by section 45 of the Code of Civil Procedure that "Where the trial or hearing of an issue of fact, joined in an action or special proceeding, civil or criminal, has been commenced at a term of a court of record, it may notwithstanding the expiration of the time appointed for the term to continue, be continued to the completion thereof; including, if the cause is tried by a jury, all proceedings taken therein until the actual discharge of the jury; or, if it is tried by the court without a jury, until it is finally submitted for a decision upon the merits."
The Code provision is a recognition that a trial can continue"Notwithstanding the expiration of the time appointed for theterm to continue," and in case of a trial by the court "untilit is finally submitted for a decision upon the merits."
Although the section of the Code quoted does not expressly provide that a term shall continue after a cause is finally submitted to the court and until a decision thereof, it was not the purpose of the statute to prevent a decision of a cause or question finally submitted to the court even if such term is not formally adjourned to a time beyond that at which a decision or order therein and the resettlement thereof is finally made and signed.
When a term of court is ended for new and further business, it may be deemed continued for the purpose of deciding cases and matters finally submitted to it during its regular and formal sittings. (Schultze v. Huttlinger,
All legislative enactments should be construed in *196 recognition of the practice which is general and long continued of making decisions in matters tried, argued and submitted at Special and Trial Term on the assumption that for the purpose of such decision the Special or Trial Term continues in existence. The order of the Special Term now under consideration was made and signed by the justice before whom the Extraordinary Special Term was regularly held at Schenectady and was entitled in such Special Term. The fact that such justice signed said order when he was not in the court house at Schenectady is not important in view of the fact that the motions were submitted to the court at the place and during the time when it was actually held as such.
We are of the opinion that although the Extraordinary Special Term had expired for the purpose of new business, it should be deemed to continue for the purpose of a final decision of the motions submitted at such Extraordinary Special Term on the 16th day of June, 1917.
The order signed July 17, 1917, contained but a partial determination of the questions before the court. The motion was remitted to that court to complete the findings or decision. The remission of the motion to the Special Term was not in any sense a new and independent step in the action. It was a necessary part of the decision of the original motion.
The order of the Appellate Division should be reversed and that of the Special Term denying the motion of the plaintiff to set aside the order of the Special Term held by Justice CLARK should be affirmed, with costs in this court and in the Appellate Division, and the question certified so far as it affects the determination of this appeal is answered in the affirmative.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND and ANDREWS, JJ., concur; McLAUGHLIN, J., not voting.
Ordered accordingly. *197