People ex rel. Nichols v. Cooper

57 How. Pr. 463

• Court: New York Supreme Court
• Decided: September 15, 1879
• Status: Published

Opinion

Westbrook, J.

In disposing of the motion to vacate the stay of judge Ingalls, the results of deliberation will be stated without giving in full the mental processes by which they have been obtained:

First. The motion by the mayor, to be made in Schenectady, is to quash the writ and not the order directing its issue. The order directs in what district and county future proceedings thereunder shall be had and taken. The power of the court to fix the venue of further action depends upon its general authority in the premises, and not, perhaps, upon section 825 of the Oode, which confers upon a justice of the supreme court, when acting as a judge, the same power which -the court inherently must possess. The officer to whom the writ issues cannot annul the effect of the order by disobeying its mandate and refusing to file his return. The subsequent orders entered in the city and county of Mew York also, if such a thing is possible, validate and confirm the position that that city and county is the spot where the litigation must be conducted.

Second. As the proceeding is pending in the first district, a motion to vacate a stay of proceedings made by a judge out of court can properly be entertained and heard by the court held therein. Mo doubt has ever been entertained by the profession on this point, and it is also expressly conferred by section 772 of the Code. Section 776 contains no limitation upon the general powers of the court. It prescribes the practice to be pursued upon a second order made by a judge when the same has been “ wholly, or partly, refused, or granted conditionally or on terms ” by another, and makes it the duty of the judge granting the last order to vacate it himself ; and if “ he is absent or otherwise unable to hear the application,” then any judge may do it “ upon proof, by affidavit, of the facts.”

Third. Every question which the motion to quash presents ■was considered upon the application for the writ of certiorari, • and the appeal from the order allowing the writ will involve the same identical propositions which are sought to be presented by the motion to quash. In substance, then, though not in form, the stay granted by brother Ingalls is precisely what the court, both at special and general tern, has refused and it was granted to enable, not a superior tribunal, but the same, though held by a different judge, to review past action, or, in short, to permit one judge to review the action of his judicial brother and peer.

However, much I may respect an associate (and the learning and .integrity of judge Ingalls are fully conceded), a careful consideration having induced me to refuse a stay before hearing had at special term upon the merits, until a review of my action in allowing the writ could be had in general term on the appeal taken from the order allowing the certiorari, the same consideration must compel the vacation of a stay which stops all action, until a brother judge has reviewed it.

Fourth. A motion to quash a writ must be made in the ■ district in .which it is returnable, or at a term held in a county adjoining that in which it is so returnable; and, as a rule, such motion can only be entertained after a return is, in fact, made. A stay of proceedings to enable a motion to be made elsewhere,.and before return, cannot be upheld, even though ■ a motion to quash it can be entertained (which is not con- - ceded), when the allowance has been on motion and after a •full hearing.

Fifth. The writ was properly made returnable at the cham bers special term. The term now being held there is a special term of the supreme court, having' all the powers and functions belonging thereto, of which it cannot be deprived by a rule which simply partitions business among terms and parts of the same court. Making the writ returnable when it was is also, it seems to me, fully warranted by the rules.

Sixth. The motion to vacate the stay is granted.

Note.—The fifth proposition above stated overruled in general term ( See following opinion). [Rep.