prescribed; it was held that such defect could not be remedied, and that the party's right to the latter mode of review was gone, the time limited for that purpose having elapsed. It would seem, however, from Dempsey v. Tylee, 1 C. R. (N. S.) 360, that this objection, though undoubtedly valid, if taken in due time, is capable of being waived by acquiescence of the adverse party; and, in that case, a motion to dismiss an appeal there taken was denied, though the court held that a motion for rehearing would have been the proper course for obtaining the review of the decision there in question, had not the period expired, within which a notice for that purpose might have been served, without any objection being taken, during that period, to the notice of appeal which had been actually served, on the ground of its irregularity.

In Schermerhorn v. The Mayor of New York, 3 How. 254, above cited, it was held that re-hearings after the passage of the supplemental Code, are governed by that measure, although such re-hearings may be of decrees pronounced before it came into operation; and a decision to the same effect, was pronounced in Burch v. Newbury, 3 How. 271; 1 C. R. 41.

In the Mayor of New York v. Schermerhorn, 1 Comst. 423; 3 How. 334; 1 C. R. 109, an appeal from the decision of Schermerhorn v. the Mayor of New York was dismissed, as being from a decision of the special term only, and also as being taken too late. The general doctrine of that decision, and that of Burch v. Newbury is however set aside, so far as regards appeals, and it was held, on the contrary, that appeals from decisions pronounced before the coming into operation of the Code, though after its passage, are governed by the old, and not by the new practice. The principle is thus stated by Bronson, J., in pronouncing the decision of the court: "On the construction which I have given to these Statutes; when the matter was decided before the first of July, the right to a review, the time within which the proceedings must be commenced, and the form of prosecuting it, from beginning to end, all depend upon the old law. The Code says nothing upon the subject. But, when the matter is decided after the first of July, whether the suit was commenced before or after that day, the right to appeal, the time within which the appeal must be taken, and the mode of procedure, all depend upon the Code."

The same doctrine is maintained in Spalding v. Kingsland 1 Comst. 426; 3 How. 337; 1 C. R. 110, and likewise in But

ler v. Miller, 1 Comst. 428; 3 How. 339; and Rice v. Floyd, 1 Comst. 608; 1 C. R. 112.

Under sec. 457, however, as last amended, it seems clear that, for the future, an appeal will lie in the ordinary form, from any judgment or order in any suit whatever, whensoever pronounced, provided such appeal be taken within the periods now limited for that purpose by sections 331 and 332 of the Code. The proceeding by rehearing would seem to be utterly abolished, and this without any reservation, even as regards inchoate proceedings.-V. Church v. Rhodes, 6 How. 281.

The counter principle established in the Mayor of New York v. Schermerhorn, i. e., that appeals from all orders made after the operation of the Code, though in suits commenced before its passage, are governed by the new practice, is confirmed by Selden v. Vermilya, 3 How. 338; 1 Comst. 534; and also by Grover v. Coon, 1 Comst. 536; 1 C. R. 96; 3 How. 341; and Tilley v. Phillips, 1 Comst. 610; 1 C. R. 111; 3 How. 364.

The above cases all have reference to appeals, under the provisions expressly rendered retrospective by the measure now under consideration. With reference, however, to appeals from a single judge to the general Term, it has been held in Doty v. Brown, 3 How. 375, 4 How. 429; Clark v. Crandall, 4 How. 127; Thomson v. Blanchard, 4 How. 260, and People ex rel. Coon v. Gilbert, 3 C. R. 181, that the old practice is in force in these cases, in suits commenced before the Code took effect.

In none of the above decisions, however, does sec. 457 of the present Code appear to have been brought before the court. Most of them, indeed, were pronounced before its passage. It seems clear by that section, that all appeals must now be conducted according to the new, and not according to the old forms, whatever the dates of the judgments, decrees, or orders, from which such appeals may be taken. See Bokee v. Banks, 3 C. R. 218.

Appeals from orders, in cases pending at the passage of this Code, are thus regulated by sections 9 and 10:

§ 9. Any party aggrieved by an order made at a special term of the supreme court, in an action at law, or in a special proceeding, when it involves the merits of the action or special proceeding, or some part thereof, may appeal therefrom to the court at a general Term; where, upon such appeal, the order may be reversed, affirmed or modified, according to law.

§ 10. The appeal in the last section mentioned, may be made by the service of a notice in writing, on the adverse party, and on the clerk with whom the order is entered, stating the appeal from the same, or some specified part thereof. But no such appeal shall be taken, unless a judge of the supreme court certify, that, in his opinion, it is proper that the question arising on the appeal should be decided at the general Term.

The former of these sections is clearly recognized as still subsisting in effect, by section 456 of the Code of 1851, as above cited.

In Iddings v. Bruen, 1 C. R. 61, it was held that sec. 9 is not identical with see. 349 of the Code, that section not being amongst those made retrospective; and that an appeal under it could therefore only be taken in the form of a rehearing under sections 7 and 10, and within the ten days there prescribed.

A motion to dissolve an injunction granted at special term, may so far affect the merits as to be the subject of a rehearing under this act, but such is not the case as regards a motion for a receiver. Sheldon v. Weeks, 1 C. R. 87; 2 Barb. S. C. R. 532. -also Conro v. Gray, 4 How. 166.

In The People ex rel. Griffin v. Steele, 1 C. R. 88, 2 Barb. S. C. R. 554, the power of the court under sections 9 and 10 was asserted to the fullest extent, and it was decided that a rehearing might be granted, of an order awarding a mandamus, though made before the passage of the Code, and that, without any limit as to the time within which such application might be made, or any necessity for security being given. It seems doubtful, however, whether the doctrine here laid down can be considered as sustainable to its fullest extent, insamuch as it appears completely to set aside the whole of that which pervades all the previous cases, as to the limitation of the time within which an appeal must be taken, and as to the necessity of security thereon, by asserting an unlimited power on the part of the court to dispense with either, under any circumstances, and at any time, if it shall think fit to exercise that power.

In Cruger v. Douglass, 2 C. R. 123, 8 Barb. S. C. R. 81, it was held that an application for the necessary process to enforce a judgment, is an appealable order. “All orders may," it was there held, "be said to involve the merits, except such as relate merely to matters resting in the discretion of the court, or to mere matters of practice or

form of proceedings." By sec. 456 of the Code, the power to take an appeal under sec. 9 is extended, so as to include orders made at special term, on a summary application after judgment, when merits are involved.

The remedies under the sections last cited are, however, as will be seen, limited to proceedings of a more important nature; by the certificate of a judge, that the question is proper to be considered by the general Term, being made a pre-requisite in all cases.

The remainder of the act may be disposed of in few words. Sections 11 to 15 inclusive, were temporary in their nature, and have expired by effluxion of time.

The following provisions are made by sections 16 and 17, in reference to causes placed on the calendar, and passed in any of the New York courts:

§ 16. When a cause, placed upon the calendar of a court of record in the city of New York, shall be regularly called and passed, without a postponement by the court, for good cause shown, it shall thenceforth take its place on the same or any future calendar, as if the date of the issue were the time when it was thus passed.

§ 17. In the case mentioned in the last section, it shall be the duty of a party placing a cause upon the calendar, for a subsequent term, to state the date of the issue, as above prescribed; and, if he omit to do so, by reason whereof the issue retains its priority on the calendar, the court, on the application of the adverse party, or of its own motion, may strike the cause from the calendar.

The act now under consideration took effect as follows, under sec. 18:

§ 18. This act shall take effect immediately, except that section wo shall take effect at the same time with the Code of Procedure.

48

LIST OF TERMS

OF THE

COURTS OF HIGHER JURISDICTION,

FOR THE YEARS 1852 AND 1853.

COURT OF APPEALS.

THE following are the provisions of sec. 13, of the Code, by which the terms of this court are fixed for the future :

§ 13. There shall be four terms of the court of appeals, in each year, to be held at the capitol in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the last Tuesday of September, and continue for as long a period as the public interests may require.

Additional terms shall be appointed and held at the same place, by the court, when the public interest requires it. The court may, by general rules, provide what causes shall have a preference on the calendar.

SUPREME COURT.

The following appointments for the years in question, have been made by the judges of the eight judicial districts, in pursuance of the directions contained in sec. 18 of the Code :

First Judicial District.

NEW YORK, Nov. 28, 1851.

By virtue of the statute in such case made and provided, we do hereby appoint the courts to be held in and for the city of New York, in the First Judicial District, for the years 1852 and 1853, as follows: