§ 27. When the court is held during the recesso f the legislature, the president of the senate, the senators, and the clerk and officers of the court are entitled to the same compensation for their attendance thereon, and for travelling to and from the place where it is held, as is allowed them at a meeting of the senate. Substantially the same as 2 R. S, 3d ed. 224, sec. 13.

CHAPTER III.

THE COURT OF APPEALS.

SECTION 28, 29. Its jurisdiction.

30. May reverse, affirm or modify, judgment or order appealed from. 31. The judges.

32. The chief judge.

33. Number of judges necessary for the transaction of business.

34. Concurrence of five judges, necessary to pronounce judgment If five do not concur, case must be reheard.

35.

Terms of the court.

36, 37. Places of holding the court.

38. Publication of order, appointing places of holding the court.

§ 28. The court of appeals has exclusive jurisdiction to review, upon appeal, every actual determination hereafter made, at a general term, by the supreme court, by the superior court or court of common pleas of the city of New-York, in the following cases, and no other:

1. In a judgment in an action commenced therein, or brought there from another court; and upon the appeal from that judgment, to review any intermediate order involving the merits, and necessarily affecting the judgment:

2. In an order affecting a substantial right, made in such action, when such order in effect determines the

action, and prevents a judgment, from which an appeal might be taken :

3. In a final order, affecting a substantial right, made in a special proceeding, or upon a summary application in an action, after judgment:

But the appeal given by this section is not allowed in an action originally commenced in a justice's court, or in the marine court of the city of New-York.

This section, with the exception of the second subdivision, is the same as presented by the Commissioners in their first report, and retained by the legislature in the amended code, sec. 11. The second subdivision, which provides for an appeal from an order, in certain cases, appears proper.

§ 29. In addition to the jurisdiction conferred by the last section, this court has jurisdiction of all cases pending in the late court for the correction of errors, on the first Monday of July, 1847, and on that day transferred to this court by the constitution, and now remaining undetermined.

Taken from the judiciary act, Laws of 1847, p. 322, sec. 12.

§ 30. This court may reverse, affirm, or modify the judgment or order appealed from; and its judgment must be remitted to the court below, to be enforced according to law.

Same as the code of 1848, sec. 12. This section was altered in the amended code, sec. 12, by authorising the court to reverse, affirm, or modify the order, "in whole or in part, and

as to any or all of the parties." This alteration is wholly unnecessary, being included in the power to modify the judg ment or order.

§ 31. This court is composed of eight judges, of whom four are elected by the electors of the state for eight years, and four selected from the class of judges of the supreme court having the shortest time to serve, as prescribed by special statutes.

Conformable to the Constitution, art. 6, sec. 2.

§ 32. The judge elected by the electors of the state, and having the shortest time to serve, is for the time being the chief judge.

The constitution, art. 6, sec., 2, prescribes that provision shall be made by law, for designating one of the number of the judges of the court of appeals elected by the electors of the state, as chief judge. This section does so, in conformity Laws of 1847, p. 320, sec. 5.

with the judiciary act.

§ 33. The presence of six judges is necessary for the transaction of business; but any one or more of the judges may adjourn the court from day to day or for the term, with the same effect as if all were present.

The constitution, art. 6, sec. 2, provides, that this court shall be "composed of eight judges," omitting to declare that a less number is competent for the transaction of business. The judiciary act, however, provided that "six judges of the court of appeals shall be necessary to constitute a quorum for holding any term of said court." Laws of 1847, p. 321, sec. 6.

The constitutionality of this provision having been virtually affirmed by the action of the court under it, it is retained in this section.

§ 34. The concurrence of five judges is necessary, to pronounce a judgment. If five do not concur, the case must be reheard.

This section is the same as section 14, of the code of 1848. It was altered in the amended code, sec. 14, so as to read as follows: "The concurrence of five judges shall be necessary to pronounce a judgment. If five do not concur, the judgment or order appealed from shall be affirmed, unless the court order a rehearing."

The reason for this alteration does not appear in the repor of the committee by which it was made, nor was it, that the Commissioners are aware, the subject of discussion in the legislature. It departs from a principle which was maturely considered by the Commissioners, and which the legislature itself, by which the alteration was made, retained in section 19, of the amended code, in respect to the supreme court. The reasons, as stated by the Commissioners in their first report, p. 24, 25, and which subsequent reflection has convinced them are unanswerable, they deem it proper here to repeat.

By the present practice, upon an equal division of the court the judgment below is affirmed. But it is well settled, that such an affirmance merely determines the particular case, and leaves the questions involved in it, open for consideration in any future case in which they may arise. Bridge v. Johnson, 5 Wend. 342; The People v. The Mayor and Aldermen of the city of New-York, 25 Wend. 252. Besides, as was decided by the court of errors, in the case last cited, and by the supreme court of the United States, in Martin v. Hunter's Lessee, 1 Wheat. 355, a rehearing in such case, cannot, in the absence of statutory authority, be allowed.

Whatever may be the policy of such a rule, in courts whose judgments may be reviewed, the principle that a judgment of a court of last resort, rendered by a tie vote, should determine the rights of parties, while, it is conceded, it does not settle

the principles on which those rights depend; nay, while at the very next term, those principles may be differently settled,strikes us as incompatible with a sound administration of justice. The rule is itself, a technical one, merely. It is, in effect, but saying, that, because on the first hearing, a party fails to obtain a reversal, his rights are to be forever concluded; and its application is universal, whether property, liberty or life be affected by the judgment. No one, it seems to us, can hesitate to admit, that it is wiser to say, in such a case, that the cause should be reheard; so that with the determination of the individual case, the principle which is to govern in future, should be established.

It has been suggested as an objection to this provision, that the concurrence of five judges should not be required, while six may hold the court. This objection is rather theoretical than practical, inasmuch as, with very few exceptions, all the judges have hitherto been present at its sessions. But even were it otherwise, the Commissioners, in view of the doubt as to the right of less than the whole number of judges to hold the court, or, if no such doubt existed, of the propriety of requiring that the decision of the court of last resort which not merely determines the particular controversy, but settles the law of the state as a precedent in similar cases, should be given by a majority of the whole court, deem this provision eminently just and expedient.

§35. There are six terms in each year, for the hearing of appeals; to commence on the first Tuesday of January, March, May, July, September and November, and to continue until the fourth Saturday thereafter, inclusive, unless all the causes ready for hearing be sooner heard. They may, however, be continued as much longer as in the opinion of the court the public interests require. Additional terms may also be held, by order of the court.

This section is substantially the same as in the code of 1848, sec. 13. It was, however, amended in the amended code, sec.