Hardin, J.
[After stating the facts as above.]—By chapter 25 of the Laws of 1870, the city of Borne was incorporated. 1 Laws 1870, 40.
The first section of the charter declares viz : “ All that part of the county of Oneida, now known as, and being the town of Borne, shall be a city known as the city of Borne, .... etc. Section 1 of article II. contains provisions enumerating the offices of said city, and among them it is declared that ‘ four justices of the peace ’ shall be elected by the city at large; and section 10 of the same article declares viz.: The term of office of the justices of the peace to be elected under this act, shall commence on the first day of January next ensuing their election, and each of such officers shall take the oath of office within ten days thereafter, and file the same with the clerk of Oneida county.”
In section 13 of title 4, it is declared viz.: “ The justices of the peace of the said city shall have and exercise all the powers, authority and jurisdiction, and discharge all the duties, and be [280]*280entitled to the fees, and compensation of justices of the peace of the several towns in the state, except as modified by this act.”
“And all laws applicable to justices of the peace of the several towns, and to their official acts, duties and powers shall apply to the justices of the peace of said city, and to their official acts, duties and powers.”
In section one of title seven is a provision conferring upon the Recorder “sole and exclusive jurisdiction in said city to issue all criminal process required to be issued by the justices of the peace of the several towns of this state, to hear all complaints .and to conduct all examinations in criminal cases, hold courts of Special Sessions and to do and perform all the duties of such courts, and to conduct and try all matters of a criminal nature, which may by law be done or tried by a justice of the peace or by two justices of the peace.” Then follows in section 3 of the same title, a provision in case of sickness, absence from the city, disability or inability to act of the said recorder conferring and imposing “ his powers and duties ” upon either of the several justices of the peace of said city.
We are of the opinion the charter in its provisions as to justices of the peace is valid, and that it was competent for the legislature to confer upon them the powers enumerated in the charter, and to withhold from them in the cases presented the powers, which otherwise would devolve upon them. Section IS of article 6 of the constitution as it was amended in 1869 was in force.when the charter was passed; that section of the constitution declared, viz. :
“ Justices of the peace and district court justices shall be elected in the different cities of the state in such manner and with such powers and for such terms respectively as shall be prescribed by law.”
It was clear then that when Kenyon was elected a justice of the sessions he was a “ justice of the peace,” and he was eligible to the office of justice of the sessions. See. 15 of art. 6, constitution. He was a justice of the peace in the county of Oneida and, therefore, within the terms of section 40 of chapter 280 of the Laws of 1847, eligible to the office of justice of sessions. However, if there was a doubt in our minds in respect [281]*281to his eligibility to the office of justice of sessions, we should incline to the opinion that he was a justice of sessions defacto, and that his acts would be valid and binding upon third parties until questioned and declared invalid in a proceeding of quo warranto directly had for that purpose, and that the Oyer and Terminer of January, 1883, where the motion was made to -fix a new day for the execution of the sentence of the prisoner, had no power to set aside the conviction and judgment thereon, with the affirmance thereof by this court pronounced in October 1882.
In People v. White, 24 Wend. 526, Bnoxson, J., said: “ But this is a case where officers having apparent authority to do the act have rendered judgment between the people and the prisoner, and neither party can, in this collateral way, call in question the title of the judges. If there had been judgment of acquittal it would have precluded the people, and the-prisoner could not have been further prosecuted.” Approved, 23 N. Y. 296. See Morris v. People, 3 Denio, 397; In re Wakker, 3 Barb. 162; Cronin v. Gundy, 16 Hun, 524. The affidavit used in the Oyer and Terminer when the order was made which we are considering stated that Maxfield, who was a justice of the peace of the town of Annsville at the time of his election, had not “ two years to serve as such justice of the peace in and for the said town of Annsville.” That fact does not impeach or impair his right to act as a justice of sessions. In section 34 of chapter 470 of the Laws of 1849 it was provided, viz.:
“ That no justice shall be so designated unless he shall be entitled to serve as a justice of the peace during such year by virtue of the election under which he shall be acting as such justice at the time of such designation.” This provision was an amendment of section 40 of chapter 280 of the Laws of 1847 which required a justice of the peace to be eligible, to have at least two years from the first day of January next after said election to serve. “ The later statute controls, and Maxfield was de jure a justice of sessions.” Nelson v. People, 23 N. Y. 293.
There was no error in refusing to amend the record in respect to what took place in the Oyer and Terminer before the trial of the prisoner. The application came late. The record [282]*282as made up had been presented to this court and acted upon, and our judgment, based upon that record, was conclusive upon the Oyer and Terminer, where the prisoner was taken in January, 1883, for the purpose of having a day named for its execution. Besides, there was no proof upon which the court could act which indicated that the judgment record was erroneous. The motion in regard to what transpired in regard to entering a special plea after a general plea of not guilty was properly denied.
These views lead us to conclude that no error was committed by the Oyer and Terminer held in January, 1883, in making the order directed by it and entered in Oneida county as of the term commencing January 29, 1883.
Fourth. It is now urged that the Oyer and Terminer sitting in January, 1883, held by a justice of this court, without any associate, erred in holding that it had power to sentence the prisoner without the two associate justices being present. On June 4, 1882, by chapter 360 of the laws of that year, section 23 of the Code of Criminal Procedure was amended so as to read, viz. : “ A court of Oyer and Terminer is held by a justice of the Supreme Court without an associate,” .
After its passage there was no law which authorized justices of sessions to sit in the Oyer and Terminer. The prisoner’s counsel calls our attention to section 962 of the Code of Criminal Procedure actions. That section declares that “ criminal actions” and •“ proceedings in criminal cases” theretofore commenced must be conducted in the same manner as if this had not been passed. This provision does pot relate to the organization of the court.
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Hardin, J.
[After stating the facts as above.]—By chapter 25 of the Laws of 1870, the city of Borne was incorporated. 1 Laws 1870, 40.
The first section of the charter declares viz : “ All that part of the county of Oneida, now known as, and being the town of Borne, shall be a city known as the city of Borne, .... etc. Section 1 of article II. contains provisions enumerating the offices of said city, and among them it is declared that ‘ four justices of the peace ’ shall be elected by the city at large; and section 10 of the same article declares viz.: The term of office of the justices of the peace to be elected under this act, shall commence on the first day of January next ensuing their election, and each of such officers shall take the oath of office within ten days thereafter, and file the same with the clerk of Oneida county.”
In section 13 of title 4, it is declared viz.: “ The justices of the peace of the said city shall have and exercise all the powers, authority and jurisdiction, and discharge all the duties, and be [280]*280entitled to the fees, and compensation of justices of the peace of the several towns in the state, except as modified by this act.”
“And all laws applicable to justices of the peace of the several towns, and to their official acts, duties and powers shall apply to the justices of the peace of said city, and to their official acts, duties and powers.”
In section one of title seven is a provision conferring upon the Recorder “sole and exclusive jurisdiction in said city to issue all criminal process required to be issued by the justices of the peace of the several towns of this state, to hear all complaints .and to conduct all examinations in criminal cases, hold courts of Special Sessions and to do and perform all the duties of such courts, and to conduct and try all matters of a criminal nature, which may by law be done or tried by a justice of the peace or by two justices of the peace.” Then follows in section 3 of the same title, a provision in case of sickness, absence from the city, disability or inability to act of the said recorder conferring and imposing “ his powers and duties ” upon either of the several justices of the peace of said city.
We are of the opinion the charter in its provisions as to justices of the peace is valid, and that it was competent for the legislature to confer upon them the powers enumerated in the charter, and to withhold from them in the cases presented the powers, which otherwise would devolve upon them. Section IS of article 6 of the constitution as it was amended in 1869 was in force.when the charter was passed; that section of the constitution declared, viz. :
“ Justices of the peace and district court justices shall be elected in the different cities of the state in such manner and with such powers and for such terms respectively as shall be prescribed by law.”
It was clear then that when Kenyon was elected a justice of the sessions he was a “ justice of the peace,” and he was eligible to the office of justice of the sessions. See. 15 of art. 6, constitution. He was a justice of the peace in the county of Oneida and, therefore, within the terms of section 40 of chapter 280 of the Laws of 1847, eligible to the office of justice of sessions. However, if there was a doubt in our minds in respect [281]*281to his eligibility to the office of justice of sessions, we should incline to the opinion that he was a justice of sessions defacto, and that his acts would be valid and binding upon third parties until questioned and declared invalid in a proceeding of quo warranto directly had for that purpose, and that the Oyer and Terminer of January, 1883, where the motion was made to -fix a new day for the execution of the sentence of the prisoner, had no power to set aside the conviction and judgment thereon, with the affirmance thereof by this court pronounced in October 1882.
In People v. White, 24 Wend. 526, Bnoxson, J., said: “ But this is a case where officers having apparent authority to do the act have rendered judgment between the people and the prisoner, and neither party can, in this collateral way, call in question the title of the judges. If there had been judgment of acquittal it would have precluded the people, and the-prisoner could not have been further prosecuted.” Approved, 23 N. Y. 296. See Morris v. People, 3 Denio, 397; In re Wakker, 3 Barb. 162; Cronin v. Gundy, 16 Hun, 524. The affidavit used in the Oyer and Terminer when the order was made which we are considering stated that Maxfield, who was a justice of the peace of the town of Annsville at the time of his election, had not “ two years to serve as such justice of the peace in and for the said town of Annsville.” That fact does not impeach or impair his right to act as a justice of sessions. In section 34 of chapter 470 of the Laws of 1849 it was provided, viz.:
“ That no justice shall be so designated unless he shall be entitled to serve as a justice of the peace during such year by virtue of the election under which he shall be acting as such justice at the time of such designation.” This provision was an amendment of section 40 of chapter 280 of the Laws of 1847 which required a justice of the peace to be eligible, to have at least two years from the first day of January next after said election to serve. “ The later statute controls, and Maxfield was de jure a justice of sessions.” Nelson v. People, 23 N. Y. 293.
There was no error in refusing to amend the record in respect to what took place in the Oyer and Terminer before the trial of the prisoner. The application came late. The record [282]*282as made up had been presented to this court and acted upon, and our judgment, based upon that record, was conclusive upon the Oyer and Terminer, where the prisoner was taken in January, 1883, for the purpose of having a day named for its execution. Besides, there was no proof upon which the court could act which indicated that the judgment record was erroneous. The motion in regard to what transpired in regard to entering a special plea after a general plea of not guilty was properly denied.
These views lead us to conclude that no error was committed by the Oyer and Terminer held in January, 1883, in making the order directed by it and entered in Oneida county as of the term commencing January 29, 1883.
Fourth. It is now urged that the Oyer and Terminer sitting in January, 1883, held by a justice of this court, without any associate, erred in holding that it had power to sentence the prisoner without the two associate justices being present. On June 4, 1882, by chapter 360 of the laws of that year, section 23 of the Code of Criminal Procedure was amended so as to read, viz. : “ A court of Oyer and Terminer is held by a justice of the Supreme Court without an associate,” .
After its passage there was no law which authorized justices of sessions to sit in the Oyer and Terminer. The prisoner’s counsel calls our attention to section 962 of the Code of Criminal Procedure actions. That section declares that “ criminal actions” and •“ proceedings in criminal cases” theretofore commenced must be conducted in the same manner as if this had not been passed. This provision does pot relate to the organization of the court. Fuller effect may be given to the words of section 962 by limiting them to “ the manner ” ip which proceedings or actions shall. be “ conducted ’■’ after they are taken up by any court to which they shall be presented. Tlie organization of a court is one thing; its manner of conducting its proceedings or actions pending in it is quite another.
Giving full effect to section 23 as amended ip 1882 and to section 962 we hold that the Oyer and Terminer was rightly organized when a justice of this court sat alone, as section 23 prescribes he may without associates. Willett v. People, 27 Hun, 470,
[283]*283The views we have expressed lead us to say no error was committed by the Oyer and Terminer of January, 1883.
Had the district attorney moved to dismiss the appeal taken from the order we should have been inclined to grant the motion. There is no provision of the Code of Criminal Procedure authorizing such an appeal as the one now before us. Section 517 authorizes an appeal to this court “from the judgment on a conviction after indictment, and upon the appeal any actual decision of the court in an intermediate order or proceeding forming a part of the judgment roll .... may be reviewed.” This does not authorize an appeal in piecemeal, first from a judgment, and after it is affirmed, an appeal from any subsequent order by a subsequent and independent appeal. See Piper v. Van Buren, 27 Hun, 384 ; Code Criminal Procedure, § 485.
As such motion was not made, we have looked into the merits, and come to the conclusion that the order ought not to be reversed by us under the peculiar circumstances.
We conclude to affirm the order, instead of dismissing the appeal upon our motion.
Order affirmed and papers ordered filed with the clerk of Oneida county.
Smith, P. J., and Macombee, J., concur.