In re Reynolds

215 A.D. 683

Opinion

Motion for order of prohibition denied. Section 7 of the Judiciary Law is not mandatory and does not constitute a limitation upon the power of the court to continue a term. (People v. Sullivan, 115 N. Y. 185, 190.) The minutes of the court show that a recess was taken on December 26, 1924, but this did not end the term. (People ex rel. Whitman v. Woodward, 150 App. Div. 180), and it may be deemed as continued. (People ex rel. Sherman v. Adjourned Special Term of Orange County, 206 App. Div. 799, decided by this court August 13, 1923; Saranac Land & Timber Co. v. Roberts, 227 N. Y. 188, 194.) Assuming that this court possesses the authority, we are of opinion that it ought not, under the circumstances here shown, to grant motions of this character which would disturb the orderly procedure of the criminal courts. It may be that the learned trial justice will hesitate to preside at the trial of the indictments in the case at bar, but that is for his determination. (See Cooke v. United States, 267 U. S. 517, 539.) An appellate court in reviewing judgments will always pass upon the conduct of the trial, and if it reaches the conclusion that the accused has not had his day in court, will find a way to correct the error. Present — Kelly, P. J., Rich, Manning, Young and Kapper, JJ.