Practice before 1846-Present practice.

and places of holding its terms, excepting that a term thereof should be held, for the hearing of causes and matters before the court, in the senate chamber of the capitol, in the city of Albany, commencing on the first Tuesday in July, 1870. See Laws of 1870, ch. 203, §§ 1, 2.

ARTICLE VI.

RULES AND CALENDARS.

Section 1. Practice before 1846. The court for the correction of errors adopted its own rules, and the clerk of the court was required to enter the causes on the calendar in the order in which the joinder in error was filed. See Rules; 16 Johns. 604; 3 Hill, 625.

Section 2. Practice under constitution, 1846. Under the provisions of section 469 of the Code, the late court of appeals possessed the power of making its own rules, so far as the same were consistent with the provisions of the Code. But no rule so made was of any force until it had been published once a week for three weeks in the State paper at Albany. Laws of 1847, ch. 470, 4.

The court also had the power to make provision, by general rules, as to what causes should have a preference on the calendar. Code, § 13.

Section 3. Present practice. The same powers in regard to the adoption of its rules is now possessed by the court of appeals as was formerly possessed by the late court of appeals; but the rules and practice of the latter will continue to be the rules and -practice of the court of appeals, until the same shall be altered by order of the court. Laws of 1870, ch. 203, §§ 1, 2.

According to existing laws, causes which are preferred take their preference on the calendar in the following order:

1. Criminal actions.

2. Cases of probate, in which the appeal prevents the issuing of letters testamentary, or of general administration.

3. Appeals in which the sole plaintiffs or defendants are executors or administrators.

4. All other preferred cases.

5. Appeals from orders entitled to be heard as motions, pursuant to subdivision 4, of section 11, of the Code of Procedure,

Before 1846- Under constitution of 1846.

and such appeals shall be entitled to preference as to each other, when two or more are moved at the same time in their order on the calendar, but will be heard as preferred cases only on motion days. Rule 20, court of appeals.

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"On a second and each subsequent appeal to this court, or when an appeal has been once 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." Code, § 13.

ARTICLE VII.

JUDGMENT.

Section 1. Before 1846. It was necessary to a decision in the old court for the correction of errors, that a majority of all the members of the court should be present at the decision; although the judgment was held to be effective, if at least ten members concurred in the decision, provided, that nineteen members were present when it was made, although the remaining nine did not vote upon the decision of the question, and had not even heard the argument of the cause. McFarland v. Crary, 6 Wend. 297. Where, however, the members of the court were equally divided, as to the judgment to be pronounced, the judgment of the court below was affirmed, though such formal affirmance was not regarded as conclusively settling the law on the subject. Bridge v. Johnson, 5 Wend. 342; Graham on Juris. 622.

A question once distinctly presented to this court, and passed upon by it, was not allowed to be again discussed or drawn in question; but such decision was regarded as definitely settling the law upon. the subject, except as in the case of an equal division of the court above noticed, where the cause was still considered open for discussion in any future case that might be presented. Mackie v. Cairns, 5 Cow. 547; Bridge v. Johnson, 5 Wend. 342, 375.

Section 2. Under constitution of 1846. In the late court of appeals, the concurrence of five judges was necessary to a decision; and, in case five did not concur, a rehearing was necessary. But no more than two rehearings could be had, and if, on the second rehearing, five of the judges did not concur, the judgment was affirmed. Code, § 14.

Present practice - Practice before 1846.

An affirmance in such case was not, however, regarded obligatory as a precedent in settling the law for any future case of the same kind. Morse v. Gould, 11 N. Y. (1 Kern.) 281. But where a question was presented to the court on a second appeal, identical with the one previously before it, the court would not depart from its former decisions, although the judges were not unanimous in making it. Oakley v. Aspinwall, 13 N. Y. (3 Kern.) 500. And it was also held that a motion might be decided by a majority of the judges present, six being a quorum. Oakley v. Aspinwall, supra.

Section 3. Present practice. Under the amended constitution of 1869, article 6, section 2, any five members of the present court of appeals constitute a quorum, and the concurrence of four of them is necessary to a decision. As to the rule in the commission of appeals, see Const. 1869, art. 6, § 4.

The former rule, as to a rehearing under the provisions of section 14 of the Code, has been changed by statute. See Laws of 1870, ch. 203, § 1.

Where a question has once been passed upon in the court of appeals, and the precise question is again presented to the same court, the rule of stare decisis must be adhered to, and the former decision followed. New York and New Haven R. R. Co. v. Ketchum, 34 How. 302; S. C., 1 Trans. App. 116; 3 Keyes, 24, 363.

Section 1. Practice before 1846. In the old court for the correction of errors, the next step to be taken after the decision of a question by the court, was to remit the record to the court below, that execution might issue upon it, according to the judgment rendered by the court above. Graham's Prac. 977.

The remittitur might be filed in vacation, and, upon filing it, the party was at once entitled to take out execution. Lyon v. Burtis, 2 Cow. 510; Dale v. Rosevelt, 1 Wend. 25. The remittitur being sent down to the court below, the court of errors lost all control and jurisdiction of the case, and it was then too late to correct an error, even in the judgment of the court. If, however, a remittitur had issued irregularly, or the party had irreg

Remittitur-Practice under constitution of 1846-Present practice.

ularly obtained the order of the court, the remittitur might, in such case, be superseded. Legg v. Overbagh, 4 Wend. 188.

Section 2. Practice under constitution of 1846. After a judgment in the late court of appeals had been once remitted to the court below, to be enforced according to law, all jurisdiction of the cause in the former court was lost, and the only remedy was by a new appeal. Dresser v. Brooks, 4 How. 207; S. C., 2 N. Y. (2 Comst.) 559; 2 Code R. 130.

And the court below had jurisdiction of the cause, although the remittitur had not actually been filed with the clerk of the latter court. Judson v. Gray, 17 How. 289.

On the dismissal of an appeal, a remittitur was the regular process to restore the cause to the court below to be enforced. Langley v. Warner, 2 Code R. 97.

Section 3. Present practice. The present practice in the court of appeals, in regard to the remitting of a cause to the court below, and the enforcement of its judgments, is similar to that formerly observed in the late court of appeals. See Laws of 1870, ch. 203, §§ 1, 2; id. § 6.

It is prescribed by rule 14 of the present rules of the court of appeals that "the remittitur shall contain a copy of the judgment of this court and the return made by the clerk below, and shall be sealed with the seal and signed by the clerk of this court."

Rule 15 prescribes that, "when a decree or order shall be affirmed by the default of the appellant, the remittitur shall not be sent to the court below, unless this court shall otherwise direct, until ten days after notice of the affirmance shall have been served on the attorney of the appellant. Service of the notice shall be proved to the clerk by affidavit, or by the written admission of the attorney on whom it was served."

And where the judgment of the court below is reversed by default in not joining in error, the remittitur should not be sent to the court below until ten days have elapsed. Lyme v. Ward, 1 N. Y. (1 Comst.) 531; S. C., 1 Code R. 101; 7 N. Y. Leg. Obs. 10.

The intention of the above rule (15), requiring a delay of ten days after service of notice of the default before the sending down of the remittitur, is to protect the party against surprise, and to give him ample time to make his application for relief, or to obtain an order staying proceedings, to enable him to do so.

Remittitur - Present practice.

Latson v. Wallace, 9 How. 334. The judgment of the court of appeals is to be sent back to the inferior court to be there enforced, and must, therefore, be brought formally to the notice of such inferior court, and be made one of its judgments. And until the judgment of the court of appeals is incorporated in its records, no proceedings can be instituted to enforce its directions. Seacord v. Morgan, 17 How. 394; S. C. affirmed, 4 Abb. N. S. 249; 35 How. 487; 34 id. 626 (n).

Upon a remittitur being filed in the court below, all that can be done by the inferior tribunal is to formally adopt the judgment of the court of appeals as its own (Macgregor v. Buell, 17 Abb. 31), and take such measures as may be necessary to carry the determination of the appellate court into effect. Id.; S. C. affirmed on this point, 1 Keyes, 153; 33 How. 450.

A single judge of the court of appeals cannot stay proceedings by an ex parte order, absolutely, after a remittitur, has been issued and placed in the hands of the prevailing party, and an entry of judgment, in pursuance of the remittitur, will be formally correct, notwithstanding such an order. Lawrencev. Bank of the Republic, 6 Rob. 497.

Where the court below has obtained legal possession of the remittitur, and has made the judgment of the appellate court its own, it has not the power to grant an order remitting back the judgment to the appellate court for the correction of errors. Vermilye v. Selden, 6 How. 41; S. C., 3 Sandf. 683; 9 N. Y. Leg. Obs. 83. And restitution will not be ordered by the court below, unless the remittitur contains a direction to that effect. Young v. Brush, 18 Abb. 171; S. C., 28 N. Y. (1 Tiff.) 667; 41 N. Y. (2 Hand) 620 (n); reversing S. C., 38 Barb. 294; 24 How. 70. Or unless upon notice to the party to be affected by such order. Id. The only remedy, in case of errors in the judgment, or in cases requiring amendment, after the remittitur has been actually filed, must be sought in the court below, or by a new appeal. Lawrence v. Bank of the Republic, 6 Rob. 497; Newton v. Harris, 1 Code R. N. S. 191; S. C., 8 Barb. 306; Burkle v. Luce, 1 N. Y. (1 Comst.) 239; S. C., 3 How. 236; Martin v. Wilson, 1 N. Y. (1 Comst.) 240. But, where the order entered on the decision of a cause does not correctly state the judgment pronounced by the appellate court, it will be amended, on motion, notwithstanding the remittitur has been filed in the court below. Palmer v. Lawrence, 5 N. Y. (1 Seld.) 455.