The sittings of courts to be public. Courts not to sit on Sunday, except in special cases. General powers of courts of record. SEC. 25. No discontinuance by reason of vacancy, etc. 26. In New-York, one judge may continue proceedings commenced before another. 27. Provisions respecting the seals of courts. 28. Seals of counties. 29. What is a sufficient sealing. 30. New seals. § 5. The sittings of a court are public, and any citizen may freely attend the same. 2 R. S. 284, § 1; 1 Wait's Pr. 228. But this provision is not intended to have any application to the sittings of military courts. People v. Daniell, 6 Lans. 44; S. C. affirmed, 50 N. Y. (5 Sick.) 274. See ante, § 1, note. § 6. A court shall not be opened, or transact any business on Sunday, except to receive a verdict or discharge a jury. An adjournment of a court on Saturday, unless made after a cause has been committed to a jury, must be to some other day than Sunday. But this section does not prevent the exercise of the jurisdiction of a magistrate, where it is necessary to preserve the peace, or, in a criminal case, to arrest, commit or discharge a person charged with an offence. on will be set aside. Pulling v. People, 8 Barb. 384; State v. Green, 37 Mo. 466. See Hiller v. English, 4 Strobh. (S. C.) 486; Bass v. Irvin, 49 Ga. 436. But, to adjourn a cause over from Saturday to the following Monday is not a violation of the statute. Vanderwerker v. People, 5 Wend. 530. Where a jury retire on Saturday, and, not having agreed upon a verdict, come into court on Sunday, when they are instructed upon a point of law without objection by either party, this will not render a verdict invalid, if one is subsequently rendered. Roberts v. Bower, 5 Hun, 558. § 7. A court of record has power: 1. To issue a subpoena, requiring the attendance of a person found in the State, to testify in a cause pending in that court; subject, however, to the limitations, prescribed by law, with respect to the portion of the State, in which the process of a local court of record may be served. 2. To administer an oath to a witness, in the exercise of the powers and duties of the court. 3. To devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it. 2 R. S. 287, § 1, modified; 1 Wait's Pr. 227; 2 id. 719. The general power vested in courts to issue process of subpoena, requiring the attendance of a witness, has no application to a conditional examination, so far as relates to the mode of securing his attendance. con defined. § 8. A court of record has power to punish for a criminal con- Criminal tempt, a person guilty of either of the following acts, and no others: tempts 1. Disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority. 2. Breach of the peace, noise, or other disturbance, directly tending to interrupt its proceedings. 3. Wilful disobedience to its lawful mandate. 4. Resistance wilfully offered to its lawful mandate. 5. Contumacious and unlawful refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory. 6. Publication of a false, or grossly inaccurate report of its proceedings. But a court cannot punish as a contempt, the publication of a true, full, and fair report of a trial, argument, decision, or other proceeding therein. 2 R. S. 288; 1 Wait's Pr. 227; 6 id. 123. A witness who is duly summoned to testify before a grand jury, and who appears, but refuses to answer a proper question propounded to him in the course of his examination, may be committed for a contempt. People ex rel. Phelps v. Fancher, 2 Hun, 226; 4 N. Y. Sup. Ct. (T. & C.) At common law it is a contempt of ment for con § 9. Punishment for a contempt, specified in the last section, Punishmay be by fine, not exceeding two hundred and fifty dollars, or by criminal imprisonment, not exceeding thirty days, in the jail of the county tempts. where the court is sitting, or both, in the discretion of the court. Where a person is committed to jail, for the non-payment of such a fine, he must be discharged at the expiration of thirty days; but where he is also committed for a definite time, the thirty days must be computed from the expiration of the definite time. Such con § 10. Such a contempt, committed in the immediate view and presence of the court, may be punished summarily; when not so how pun- committed, the party charged must be notified of the accusation, and have a reasonable time to make a defence. tempts in view of court; ished, etc. of com 2 R. S. 289, § 12; 6 Wait's Pr. 120, 136; 1 id. 187. Upon an order to show cause why the person to whom it is addressed should not be punished for a contempt, it is within the general power of the court to order a reference to take testimony for the information of the court upon the subject of the contempt. People ex rel. Alexander v. Alexander, 5 N. Y. Sup. Ct. (T. & C.) 298; S. C., 3 Hun, 211. Requisites § 11. Where a person is committed for such a contempt, the mitment. particular circumstances of his offence must be set forth in the mandate of commitment. Preceding sections limited. Indictment, if indictable. 2 R. S. 289, § 13; 6 Wait's Pr. 136, 138. § 12. The last four sections do not extend to a special proceeding to punish a person, in a case specified in section 14 of this act. 2 R. S. 289, § 14. § 13. Punishment for a contempt, as prescribed in this article, offence is does not bar an indictment for the same offence; but where a person who has been so punished is convicted on such an indictment, the court, in sentencing him, must take into consideration the previous punishment. Contempts punishable civilly. 2 R. S. 289, § 15; 6 Wait's Pr. 138. A commitment for a contempt committed in the presence of the court is an adjudication of an action for a criminal offence, and is, therefore, not bailable. Matter of Percy, 2 Daly, 530. § 14. A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in either of the following cases: 1. An attorney, counsellor, clerk, sheriff, coroner, or other person, in any manner duly selected or appointed to perform a judicial or ministerial service, for a misbehavior in his office or trust, or for a wilful neglect or violation of duty therein; or for disobedience to a lawful mandate of the court, or of a judge thereof, or of an officer authorized to perform the duties of such a judge. 2. A party to the action or special proceeding, for putting in fictitious bail or a fictitious surety, or for any deceit or abuse of a mandate or proceeding of the court. 3. A party to the action or special proceeding, an attorney, counsellor, or other person, for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution cannot be awarded for the collection of such sum; or for any other disobedience to a lawful mandate of the court. 4. A person, for assuming to be an attorney or counsellor, or other officer of the court, and acting as such without authority; for rescuing any property or person in the custody of an officer, by virtue of a mandate of the court; for unlawfully detaining, or fraudulently and wilfully preventing, or disabling from attending or testifying, a witness, or a party to the action or special proceeding, while going to, remaining at, or returning from, the sitting where it is noticed for trial or hearing; and for any other unlawful interference with the proceedings therein. 5. A person subpoenaed as a witness, for refusing or neglecting to obey the subpoena, or to attend, or to be sworn, or to answer as a witness. 6. A person duly notified to attend as a juror, at a term of the court, for improperly conversing with a party to an action or special proceeding, to be tried at that term, or with any other person, in relation to the merits of that action or special proceeding: or for receiving a communication from any person, in relation to the merits of such an action or special proceeding, without immediately disclosing the same to the court. 7. An inferior magistrate, or a judge or other officer of an inferior court, for proceeding, contrary to law, in a cause or matter, which has been removed from his jurisdiction to the court inflicting the punishment; or for disobedience to a lawful order or other mandate of the latter court. 8. In any other case, where an attachment or any other proceeding to punish for a contempt, has been usually adopted and practiced in a court of record, to enforce a civil remedy of a party to an action or special proceeding in that court, or to protect the right of a party. 2 R. S. 552, § 1, amended, principally by the insertion of the provision in subd. 4, for the punishment of a person fraudulently preventing or disabling a witness from testifying. See Matter of Nichols, 54 N. Y. (9 Sick.) 62, 67. None of the provisions of this section are applicable to surrogates' courts. Timpson's Estate, 15 Abb. N. S. 230, 236. A party who is enjoined, and who violates the injunction, or who aids, abets and countenances others in violating it, may be punished as for a contempt of the court issuing the in junction. Mayor, etc., of New-York v. A party examined, on an order for * No punishment for nonpayment of interlocutory costs. Id.; money a contract tion put to him, may be punished for See this subject fully considered, 6 § 15. [Amended, 1877.] But a person shall not be arrested or imprisoned, for the non-payment of costs, awarded otherwise than by a final judgment, or a final order, made in a special proceeding instituted by State writ, except where an attorney, counsellor, or other officer of the court, is ordered to pay costs for misconduct as such, or a witness is ordered to pay costs on an attachment for non-attendance. Laws of 1847, ch. 390, § 2; 4 Edm. St. 630. § 16. Except in a case where it is otherwise specially prescribed due upon by law, a person shall not be arrested or imprisoned for disobedience to a judgment or order, requiring the payment of money due upon a contract, express or implied, or as damages for non-performance of a contract. Rules of courts of record, how revised. Laws of 1831, ch. 300, § 1; 4 Edm. St. 465, amended so as to conform to modern procedure. The provisions of this section are intended to affect pro ceedings for disobedience to judgments and orders in equity causes only. See, also, post, §§ 548, 1240 and 1487; Code Pro., §§ 178, 288. § 17. [Amended, 1877.] The general term justices of the supreme court, and the chief judges of the superior city courts, must made and meet in convention, at the capitol, in the city of Albany, on the first Wednesday of October, 1877, and every second year thereafter. The convention must establish rules of practice, not inconsistent. with this act, which shall be binding upon all courts of record, except the court for the trial of impeachments and the court of appeals. A majority of the members of the convention constitute. a quorum. The rules thus established are styled in this act, "the general rules of practice". Rules to be published. Laws of 1870, ch. 408, § 13; 7 Edm. St. 731, amended. The last sentence of the section is new. See Wait's Ann. Code, 803, 822; Rice v. Ehele, 55 N. Y. (10 Sick.) 518. The power given to the judges to make general rules is not large enough to authorize a rule which nullifies or contravenes a statute. Id.; Glenney v. Stedwell, 64 N. Y. (19 Sick.) 120; S. C., 51 How. 329. See 1 Wait's Pr. 461-462; id. 286; id. 320; 4 id. 627, 628. § 18. A rule thus established, or a general rule or order of the court of appeals, does not take effect, until it has been published in the newspaper published at Albany, in which legal notices are required by law to be published, once in each week for three successive weeks. Laws of 1847, ch. 470, § 4; 4 Edm. St. 582. |