Bennett v. Cooper

There was a regular term of the county court held in September, 1868. On the 10th of September an entry was made in the minutes, in these words : “ Court adjourned to 19th instant, at 10 A. M., at chambers of judge.” The first proceedings for the discharge were on the 19th of September, at the county judge’s office; and the final proceedings were on the 21st of the same month, at the same place. There was no term of the court until December. It was claimed that on one or two occasions, during these proceedings, the attorney for the plaintiff was present. But he did not formally appear, nor intend *643to appear. If he had appeared in the proceedings, it is possible that, under section 31 of the Code, his appearance would have waived a notice; and that thus the county court might have been considered to be in session at the time when the proceedings were had.

But there was no appearance'; and the question remains simply as to the power of the court to adjourn to the judge’s chambers and act there as a court, in matters requiring notice.

The same section (31) requires the terms of the court to be held at the places designated by statute.

By the law, as it stood prior to the constitution of 1846, the courts of common pleas, in all cases not specially provided for, were to be held at the court houses in the respective counties. (2 R. S. marg. p. 215, § 21, part 3, ch. 1, title 5.) The constitution of 1846 substituted county courts for courts of common pleas. (Art. 6, § 14. Art. 14, § 5.) . The legislature, in the following year, provided that the terms of the county courts should be held at the court house, or other usual place of holding courts of common pleas. (Sess. Laws 1847, ch. 280, § 26.)

The distinction in the Supreme Court, between business which can be dóne at chambers and that which must be done at term, is familiar, and is often recognized in the Code. (See §§ 27 and 401, subd. 3.) It is true that this distinction has practically been somewhat obliterated by the last clause of section 24, authorizing the adjournment of a special term to chambers; and by the practice which has grown up under that section, and which has been recognized in the The People v. Central City Bank, (53 Barb. 412.) But I see no authority to extend, that power to the county court. Indeed, section 31 implies that in proceedings of which notice must be given, the court is not always open. Of course I have no doubt that the proceedings in this case were conducted as fairly as they would have been in open court. Of this the high character of the judge is *644ample guaranty. Still I think that the .law requires the county court of Greene to be held at the court house; and that there is wisdom in giving that publicity to legal proceedings which they cannot so well have in the office of the judge. To allow the court to be adjourned to the office of the judge, and there continued from timé to time, as was done in this case, is practically to repeal section 31 of the Code.

I shall, therefore, hold that the plaintiff is entitled to recover.

Learned, Justice.]