Such appoint to be re corded § 39. Such an appointment or revocation must be under the hand ment, etc., of the governor, and filed in the office of the secretary of State; it must be published in such newspapers and for such time, as the governor directs; and the expense of the publication must be paid out of the State treasury. and published. Judge may change place for holding court of record. Actual session may be ad journed to another place. Place for holding courts in city of 2 R. S. 301, § 88. § 40. If a malignant, contagious, or epidemic disease exists at the place, where a term of a court of record is appointed to be held, and the governor has not appointed, under the last two sections, another place to hold the same, the judge, or, if there are two or more, the chief or presiding judge, designated to hold the term, may, by order, direct the term to be held at another place, designated by him, within the district for which it is to be held. The order must be forthwith filed, in the office of the clerk of the county where the term was to be held, and published in such newspapers, and for such a time, as the judge directs therein; and thereafter the governor shall not appoint another place, for holding that term. Laws of 1866, ch. 174, § 1; 6 Edm. St. 705. § 41. If, during the actual session of a term of a court of record, the judge, or a majority of the judges, holding the same, deem it inexpedient, by reason of war, pestilence or other public calamity, or the danger thereof, or for want of suitable accommodation, that the term should be continued at the place where it is then being held, the court may, by order, adjourn the term, to be held at any other time and place within its district. Notice of such an adjournment must be given, as the court directs by the order. Laws of 1833, ch. 159, § 5, first clause, and Laws of 1866, ch. 174, § 2; 4 Edm. St. 532, and 6 id. 705, consolidated and amended. § 42. The mayor, or, in case of his absence, or other disability, the recorder of the city of New-York, may, by proclamation, direct New-York, that the next ensuing term of any court, other than the court of changed. appeals, appointed to be held in that city, shall be held in any build how ing, within the city of New-York, other than the building where the same is regularly to be held, if, in his opinion, war, pestilence, or other public calamity, or the danger thereof, or the destruction or injury of the building, or the want of suitable accommodation, renders it necessary that some other place should be selected. The proclamation must be published in two or more daily newspapers, published in the city of New-York. 2 R. S. 801, 802, §§ 89 and 90, consolidated. court unfit to court, place to be § 43. If the building established as a court-house in any other When county is destroyed, or is, for any cause, unsafe, inconvenient, or house is unfit for holding court therein, the county judge of the county may, hold by an order filed in the office of the clerk of the county, appoint another another building in the vicinity for temporarily holding courts. The appointed. building so appointed becomes the court-house of the county, for the time being; and business transacted therein has the same effect, as if it was transacted at the usual place. 2 R. S. 302, §§ 93 and 94, consolidated. or special ing abat by failure journment § 44. When a term of* court fails or is adjourned, or the time or No action place of holding the same is changed, as prescribed in this chapter, proceedan action, special proceeding, writ, process, recognizance, or other ed, etc., proceeding, civil or criminal, returnable, or to be heard or tried, at or adthat term, is not abated, discontinued, or rendered void thereby; but all persons are bound to appear, and all proceedings must be had, at the time and place to which the term is adjourned or changed, or, if it fails, at the next term, with like effect as if the term was held, as originally appointed. New in form, and a substitute for the following statutory provisions: 2 R. S. 212, § 22; id. 287, §§ 3, 5 and 6; id. 302, § 91; Laws of 1833, ch. 159, § 3; 4 Edm. St. 532; Laws of 1847, of court. commenc continued term. § 45. Where the trial or hearing of an issue of fact, joined in an Trial once action or special proceeding, civil or criminal, has been commenced ed may be at a term of a court of record, it may, notwithstanding the expira- beyond tion 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. Laws of 1875, ch. 3, § 1, extended. Laws of 1846, ch. 2; and Laws of 1859, ch. 208, § 1; 5 Edm. St. 248, super seded. See Lowenberg v. The People, The word "a" omitted by error in engrossing. Judge not to sit is a party, etc., or has not heard argu TITLE II. Provisions of general application, relating to the judges, and certain other officers of the courts. ARTICLE 1. General powers, duties, liabilities, and disabilities of judges, and officers acting judicially. 2. Attorneys and counsellors at law. 3. General provisions concerning certain ministerial officers, connected with the administration of justice; and special provisions concerning officers of that description, attached to two or more courts. ARTICLE FIRST. GENERAL POWERS, DUTIES, LIABILITIES, AND DISABILITIES OF JUDGES AND SEC. 46. Judge not to sit where he is a party, etc., or has not heard argument. 47. Judge not to be interested in costs. 48. Disability of judge in certain appeals. 49. Judge or judge's partner not to practice in his court. 50. Judge's partner or clerk not to practice before him; judge not to practice in a cause which has been before him. 51. Judge not to take fees for advice in certain cases. 52. Substitution of one officer for another in special proceeding. 53. Proceedings before substituted officer, 54. Judge to file certificate of age, etc. § 46. A judge shall not sit as such in, or take any part in the where he decision of, a cause or matter to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or in which he would be excluded from being a juror, by reason of consanguinity or affinity to either of the parties. A judge, other than a judge of the court of appeals, shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge. ment. 2 R. S. 284, § 2; Laws of 1847, ch. 280, 81; 4 Edm. St. 580; Laws of 1850, ch. 41, § 2; 4 Edm. St. 539, consolidated without material change, except by the addition of the word "orally" in the last line but one. See 1 Wait's Pr. 46, 47, 317; Rivenburgh v. Rivenburgh, 4 Lans. 208. The provision of the statute and the rule of the common law, prohibiting a judge from sitting in a cause in which he is interested, apply simply to judges, co nomine, or to justices or other persons holding courts; and they cannot be extended to administrative officers in the performance of acts requiring de liberation and sound judgment. Foot v. Stiles, 57 N. Y. (12 Sick.) 399. A judgment, attempted to be rendered by a judge, who is disqualified by reason of consanguinity with one of the parties, is utterly void, and incapable of being made good by any omission, waiver or consent. Chambers v. Clearwater, 1 Abb. Ct. App. 341; S. C., 1 Keyes, 310; affirming, 41 Barb. 200. Two justices of the general term may hold a term and hear and decide an appeal in which the remaining_justice is incompetent to sit. Van Rensselaer v. Witbeck, 2 Lans. 498. And it is no objection to a judgment of the general term that one of three judges, hearing the appeal, died before the decision, and that it was made by the other two. Campbell v. Seaman, 63 N. Y. (18 Sick.) 568. A court of oyer and terminer, at the trial of an indictment for murder, was held by a justice of the supreme court, a county judge and two justices of the sessions. During the pendency of the trial, one of the justices of the sessions was absent for a day, and then re turned, and, without having read the to be in in costs. § 47. A judge shall not, directly or indirectly, be interested in Judge not the costs of an action or special proceeding, brought before him, or terested in a court of which he is, or is entitled to act as a member, except an action or a special proceeding to which he is a party, or in which he is interested. 2 R. S. 285, § 5, in part. See 1 Wait's Pr. 46, 317. of judge appeals. § 48. Where an appeal has been taken to a court of sessions, in Disability which a town in the county is interested, a justice of the peace, who in certain is a resident of that town, shall not sit as a justice of sessions, upon the hearing of the appeal. Except as specified in this section, a judge of a court of record is not disqualified, from hearing or deciding an action or special proceeding, matter, or question, by reason of his being a resident or a tax-payer of a town, village, city, or county, interested therein. 2 R. S. 219, § 10, amended. judge's not § 49. A judge shall not practice or act as an attorney or coun- Judge or sellor, in a court of which he is, or is entitled to act as a member, or partner in a cause originating in that court. A law partner of, or person to pla his connected in law business with a judge, shall not practice or act as court. an attorney or counsellor, in a court, of which the judge is, or is entitled to act as a member, or in a cause originating in that court; except where the latter is a member of a court, ex-officio, and does not officiate or take part, as a member of that court, in any of the proceedings therein. An ex-officio judge shall not, directly or indirectly, be interested in the costs, or the compensation of an attorney or counsellor, in the court of which he is ex-officio a judge. This section embodies, in brief, the substance of the following provisions: 2 R. S. 284, §§ 4, 5; Laws of 1839, ch. 303, as amended by Laws of 1841, ch. and id., ch. 346; 4 Edm. St. 550; 272; Laws of 1847, ch. 280, part of § 82; 4 Judge's partner or clerk not to practice before him; judge not to practice in a cause which has been before him. Judge not to take fees for advice in certain cases. Substitution of for another in special ing. § 50. [Amended, 1877.] The law partner or clerk of a judge shall not practice before him, as attorney or counsellor in any cause, or be employed in any cause which originated before him. A judge shall not act as attorney or counsellor in any action or special proceeding, which has been before him in his official character. Laws of 1847, ch. 470, § 52; 4 Edm. St. 590. 2 R. S. 285, § 5. § 51. A judge or other judicial officer, shall not demand or receive a fee or other compensation, for giving his advice in a matter or thing pending before him, or which he has reason to believe will be brought before him for decision; or for preparing a paper or other proceeding, relating to such a matter or thing; except a justice of the peace, in a case where a fee is expressly allowed to him by law. 2 R. S. 285, § 6, amended so as to conform to section 21 of the judiciary article (VI) of the constitution. § 52. In case of the death, sickness, resignation, removal from one officer office, absence from the county, or other disability of an officer, before whom a special proceeding has been instituted, where no express proceed- provision is made by law for the continuance thereof, it may be continued before the officer's successor, or any other officer residing in the same county, before whom it might have been originally instituted; or, if there is no such officer in the same county, before an officer in an adjoining county, who would originally have had jurisdiction of the subject-matter, if it had occurred or existed in the latter county. Proceed ings be stituted officer. 2 R. S. 295, § 51. § 53. At the time and place specified in a notice or order, for a fore sub- party to appear, or for any other proceeding to be taken, or at the time and place specified in the notice to be given, as prescribed in this section, the officer substituted as prescribed in the last section, or in any other provision of law, to continue a special proceeding instituted before another, may act, with respect to the special pro ceeding, as if it had been originally instituted before him. But a proceeding shall not be taken before a substituted officer, at a time or place, other than that specified in the original notice or order, until notice of the substitution, and of the time and place appointed for the proceeding to be taken, has been given, either by personal service or by publication, in such manner and for such time as the substituted officer directs, to each party who may be effected* thereby. and who has not appeared before either officer. Where, after a hearing has been commenced, it is adjourned to the next judicial day, * Error in engrossing for " affected." |