Early courts-Before 1846.

Nor of actions against foreign corporations, except in strict compliance with the statute conferring jurisdiction. Cumberland Coal Co. v. Sherman, 8 Abb. 243; S. C., 30 Barb. 159.

Actions to recover penalties created by the statutes of another State are not cognizable in the courts of this State. Bird v. Hayden, 2 Abb. N. S. 61; S. C., 1 Rob. 383.

It has no jurisdiction of an action upon a right conferred by statutes where the statutes provide for its enforcement through other courts without mentioning the supreme court. Dudley v. Mayhew, 3 N. Y. (3 Comst.) 9; ante, 45.

Nor has it jurisdiction to restrain an action pending in a sister State. Williams v. Ayrault, 31 Barb. 364; Mead v. Merritt, 2 Paige, 402.

ARTICLE III.

POWERS.

Section 1. Early courts. Of the particular powers of the early supreme court of the State we have very little record, except that it was invested with such authority as was necessary for the conduct of its then limited business, and had power to establish rules and ordinances and regulate the practice of the court. Col. Sess. Laws (Bradford's Ed.) of 1694.

Section 2. Before 1846. The constitution of 1823 materially altered the structure of the court, and there was invested in its officers certain new powers, which we shall briefly notice.

The State was divided at this time into eight circuits, in each of which there was to be a circuit judge, and it created three justices of the court, who, beside the powers of the circuit judges, constituted a superior tribunal, with power to review the decisions of the circuit courts, the courts of oyer and terminer, and of all inferior jurisdictions. Const. of 1823, art. 5. It also provided that equity powers might be vested in the circuit judges. Const. of 1823, art. 5. See act of April 17, 1823, chap. 182.

Under the regulations of the Revised Statutes, the circuit courts had power to try all such issues and take all such inquests as are to be tried or taken in said courts, to record all nonsuits or defaults taken before them, and to return all proceedings had before them into the supreme court or the court directing the same. 2 R. S. 202, 203, § 13. Any judge or justice of the court might hold circuits in any part of the State. 2 R. S. 203, § 14.

Under constitution of 1846-Present powers.

Section 3. Under constitution of 1846. Under the constitution of 1846 the supreme court possessed the same powers as had previously been exercised by that court and the court of chancery (Laws of 1847, ch. 280, § 16), for, under that instrument, the court had a general jurisdiction in law and equity (Const. of 1846, art. 6, § 3), and the justices of the court exercised the same powers as had previously been exercised by justices of the supreme court, chancellors, vice-chancellors and circuit judges, so far as the same were consistent with the constitution and the provisions of the act of establishment. Laws of 1847, ch. 280, § 16. All previous laws relating to the powers of the court and judges were made applicable to the court thus constituted. Laws of 1847, ch. 280, § 22.

Justices of the peace and judges and justices of inferior courts not of record might be removed by the supreme court. Laws of 1847, ch. 280, § 25.

The court of course possessed all the powers incident to courts of general jurisdiction, but we have reserved particular notice of the powers of the judges for the article on the present power of the court, in order to avoid repetition.

Section 4. Present powers.

a. Of the court. The court, as at present constituted, possesses all the powers incident to courts of general jurisdiction, both at law and in equity, which includes the power to regulate its practice and enforce obedience to its commands within the jurisdiction of the court in the manner regulated by law. As to the power of the court to punish for contempt, see Wicker v. Dresser, 4 Abb. 93; S. C., 13 How. 331; Dresser v. Van Pelt, 15 id. 19; S. C., 6 Duer, 687. It has been held in a late case that the court has no power to punish as for contempt the disobedience of an order made by a judge out of court, unless the order was made in an action pending in the court. The People ex rel. Geery v. Brennan, 45 Barb. 344.

The power of the court in particular cases will not be detailed in this portion of the work, but reference may be had to the practice in the various proceedings where the powers of the court will be fully set forth, and for the powers of the various terms see Terms."

b. Of the judges in court.

Justices of the supreme court when holding terms, or as it is commonly called, in court, have

Of the judges in court-Business done out of court.

all the powers of the court except such as are vested in the general term.

In the first judicial district an order made at chambers has the same effect as if made in court. Main v. Pope, 16 How. 271.

Any justice of the court may hold special terms and circuits and hold courts of oyer and terminer in any county, but no judge or justice can sit at general term, or in the court of appeals, to review a decision made by him, or by any court of which he was at the time a sitting member. Const., art. 6, §§ 7, 8; Code, § 26. If associate justices of the general term are absent, the presiding justice present may select any justice of the supreme court to hold with him the general term, and the associate justices of any department have power to sit in the general term of any other department in place of any justice of such other department. Laws of 1870, ch. 408, §§ 4, 6.

c. Adjournment. After an appointment of the time and place of holding a circuit has been duly made, a judge has no authority to adjourn such court to be held at another place Northrup v. People, 37 N. Y. (10 Tiff.) 203; S. C., 4 Abb. N. S. 227; 4 Trans. App. 477; reversing 50 Barb. 147. But in times of epidemic disease the presiding judge of the court may make an order changing the place of session. Laws of 1866, ch. 174.

d. At chambers. The judges of the court are required at all · reasonable times, when not engaged in holding court, to transact such other business as may be done out of court. Code, §

27.

Business done out of court is usually said to be done at chambers, and business of this character may be done in most cases, by a justice of the court at any place, as for example, at his residence or hotel. But when acting out of court he can only do what he is authorized by the legislature to do. Bangs v. Selden, 13 How. 374.

e. First district. Every proceeding commenced before one of the judges of the first judicial district may be continued before another with the same effect as if commenced before him. Code,

27. The true construction of this is, that a proceeding commenced by a judge competent to institute it may be continued before any other judge competent to have commenced it. Dresser v. Van Pelt, 15 How. 19; S. C., 6 Duer, 687.

f. What may be done at chambers. Judgment may be given on a frivolous answer, demurrer or reply. Code, § 247. And under

What cannot be done at chambers.

that section he may make the order either absolute or conditional. · Witherspoon v. Van Dolar, 15 How. 266. He may grant an order of arrest, an attachment, an injunction, or an order for examination in supplementary proceedings (Code, §§ 180, 218, 228, 292), and may conduct almost every interlocutory proceeding in an action. See Code, & 401.

As to the power of a judge to punish for a contempt of his orders, see Wicker v. Dresser, 14 How. 465; Dresser v. Van Pelt, 15 id. 19; Shepherd v. Dean, 13 id. 173; S. C., 3 Abb. 424; Matter of Smethurst, 4 How. 369; S. C., 2 Sandf. 724; 3 Code R. 55; The People ex rel. Kearney v. Kelly, 22 How. 309; S. C., 13 Abb. 459.

In the first judicial district, judges at chambers are authorized to hear all motions, except for new trials on the merits. Code, & 401. See Main v. Pope, 16 How. 271; Disbrow v. Folger, 5 Abb. 53; Lowber v. Mayor, etc., of New York, id. 325, except perhaps to grant a judgment, which, it seems, he cannot do, except upon a frivolous pleading. Aymar v. Chace, 12 Barb. 301; S. C., 1 Code R. N. S. 330.

Proceedings in that district commenced before one judge may be continued with like effect before another. Code, § 27. See Dresser v. Van Pelt, 15 How. 19.

No order to stay pro

What cannot be done at chambers. 9. ceedings for a longer time than twenty days can be granted by a judge out of court, except upon previous notice to the adverse party. Code, § 401. As to the force of an order granted in violation of this section, see Hasbrouck v. Ehrich, 7 Abb. 76, 80.

An ex parte order staying proceedings pending an appeal, cannot be made by a judge out of court (Steam Nav. Co. v. Weed, 8 How. 49), and semble, that no order should be made in that case, except such a one as will expire by its own limitation within twenty days. Lottimer v. Lord, 4 E. D. Smith, 183.

He should only grant an absolute stay until application can be made for relief (Chubbuck v. Morrison, 6 How. 370; Bank of Genesee v. Spencer, 15 How. 14), see id. 416, n, and only for twenty days altogether. Sales v. Woodin, 8 How. 349; Anonymous, 5 Sandf. 656; Marvin v. Lewis, 12 Abb. 482.

An application for an additional allowance must be made to the court. S. C. Rules. Code, § 309. See Mann v. Tyler, 6 How. 235; S. C., 1 Code R. N. S. 382.

A judge out of court cannot tax a bill of costs. Van Schaick

What officers may perform chamber duties.

v. Winne, 8 How. 5. See also Nellis v. De Forest, 6 id. 413. But costs in an interlocutory proceeding in an action or a special proceeding, may be adjusted by the judge before whom the same may be had. Code, § 311.

If the hearing of a motion is to be before the court, no judge at chambers can lessen the time for such hearing by an order to show cause, except the judge before whom the hearing is to be had. Merritt v. Slocum, 6 How. 350.

A judge at chambers cannot extend the time for making and serving a case after the time allowed has expired. Brown, 3 How. 375.

Doty v.

Nor can an order be made out of court which is absolute, continuing and indefinite, either to set aside or stay proceedings. Bank of Genesee v. Spencer, 15 How. 14, 416, n. Officers acting at chambers cannot review collaterally a question decided by a competent tribunal. People ex rel. Darlington v. Orser, 12

How. 550.

An application to review the ex parte order of a judge at chambers must be made to the justice who granted the order, or to the court on notice. Cayuga County Bank v. Warfield,

13 How. 439; Code, § 324.

Orders to show cause, made by a judge out of court, cannot be made returnable before another judge, or before the court. Hasbrouck v. Ehrich, 7 Abb. 76, 81; Merritt v. Slocum, 6 How. 350; but the hearing may be transferred to another judge. Code, § 404.

The venue cannot be changed by a judge at chambers. Schenck v. M'Kie, 4 How. 246.

Nor can he allow a common-law writ of certiorari. Gardner v. Commissioners, etc., of Warren, 10 How. 181.

A judge out of court has no authority to punish for contempt of an order made by him in a statutory proceeding before him unless authority so to punish is conferred by law. The People ex rel. Geery v. Brennan, 45 Barb. 344.

h. What officers may perform chamber duties. Prior to the constitution of 1846 there existed certain officers termed supreme court commissioners, who performed most of the duties of justices at chambers. That instrument abolished the office of commissioner, but similar powers have been conferred on certain other officers, as follows:

County judges may, within their respective counties, make