Tallmadge v. Teller

By the Court,

The sixth section of the act of 1832 provides, that “ no person acting as a supreme court commissioner in the city of New-York, shall be authorized to make any order or do any act relative to suits pending in the supreme court; but in the absence from the city of New-York, or sickness of the circuit judge of the first circuit, such duties may be performed by the first judge of the common pleas, or the recorder of.the city.” By the acts of 1834 and 1839, the same powers that may be exercised by the first judge are conferred on the associate judges of common pleas.

Although the fact is not stated in the order of Judge Inglis, it is but a reasonable intendment that the circuit judge was absent or sick at the time the order was made.

II. Judge Inglis was not the representative of the circuit judge in making the order; he acted as a supreme court commissioner. 2 R. S. 281, § 32. And the 95th rule is general, that a second order for a time to plead made by a supreme court commissioner may be treated as a nullity. The act of 1832 does not confer any new powers on the *648judges of the New York common pleas, and the recorder of the city; it only suspends the exercise of powers which they before possessed, during the time that the circuit judge is in the city, and able to discharge his duties. The plaintiff was therefore regular; but as there is an affidavit of merits, the defendant must be relieved on the usual terms.

Ordered accordingly.