
    Supreme Court—General Term—fourth Department.
    
      April, 1883.
    OSTRANDER v. PEOPLE.
    Justices of the Peace of the City of Rome—eligibility to Office of Justice of Sessions.—Officers be facto, acts of.—Code Criminal Procedure, §§ 962, 23.—Motion to amend Record after Judgment.—Appeal from Order after Judgment—when not Allowed.
    The provisions of the charter of the city of Rome (L. 1870, ch. 35), in regard to the appointment of justices of the peace for said city and their powers, including the provisions conferring upon the recorder of said city, except in case of absence, disability, etc., the exclusive criminal jurisdiction which otherwise would be exercised by said justices, are constitutional, and said officers are justices of the peace in a constitutional sense, and as such are eligible to the office of justice of the sessions.
    
      It seems, that if such officers were constitutionally ineligible to the office of justice of the sessions, yet one duly elected and serving as such justice of the sessions would be a justice of sessions de facto, and his acts woüld be valid and binding upon third parties, until declared invalid in a proceeding of quo warranto directly had for that purpose.
    
      •L. 1847, ch. 38,—providing that a justice of the peace to be eligible to the office of justice of the sessions shall have at least two years from January 1, next.after said election to serve,—is superseded by L. 1849, ch. 470, providing that no justice shall be so designated unless he shall be entitled to serve as a justice of the peace during such year by virtue of the election under which he shall be acting as such justice at the time of such designation.
    Section 963 of the Code of Criminal Procedure,—providing that criminal actions and criminal proceedings theretofore commenced must be conducted “in the same manner" as if said Code had not been passed,—does not relate to the organization of the court; therefore, a prisoner who was tried and convicted before the passage of said Code at a court of Oyer and Terminer held by a justice of the Supreme Court and two associates, is properly sentenced after its passage, at a court of Oyer and Terminer held by a justice of the Supreme Court alone, under section 33 of said Code, as amended in 1880.
    Where appeal has been taken by defendant from a judgment of con vie-' tion which is affirmed by the General Term, it is too late when defendant appears at Oyer and Terminer to have a day fixed for the execution of the sentence, to move to amend the record in regard to what took place at Oyer and Terminer before the trial. The record is then conclusive on the Oyer and Terminer.
    
      It seems, that no appeal lies from an order denying a motion to set aside a judgment, etc., made at Oyer and Terminer when the defendant appears for the purpose of having a day fixed for the execution of the sentence, after an appeal from the judgment of conviction and an affirmance by the General Term.
    Appeal from an order of Oyer and Terminer, held January, 1883, in Oneida County, denying a motion to vacate and set aside a judgment and conviction.
    Upon a writ of error to review the conviction of the prisoner of murder in the first degree in the Oneida Oyer and Terminer, the General Term affirmed the judgment entered upon such conviction and remitted the proceedings to the Oyer and Terminer of Oneida, witli instruction to proceed thereon.
    In the January Oyer and Terminer of 1883, the district attorney moved the court to fix a day for the execution of the sentence of death theretofore pronounced upon him in pursuance of said judgment and directions.
    Thereupon the prisoner’s counsel filed an affidavit made upon information and belief, in which it was stated, viz.: First: That one Benjamin B. Kenyon of the city of Rome, was, on or about the 3rd day of November, 1879, elected a justice of the peace in and for said city, in .accordance with an act of the Legislature entitled “ An Act to incorporate the city of Rome passed February 23, 18ÍT0.: Second. That January 1, 1880, said Kenyon entered upon the duties of said office, and has held said office ever since: Third. That on the 8th day of November, 1881, said Kenyon was elected a justice of sessions of the county of Oneida, and held said office until January 1, 1883 : Fourth. That at the September or October term of the Oyer and Terminer, held at Rome, in said county September 26, 1881, and at which term said William H. Ostrander was tried for murder, the said B. B. Kenyon, Esq., was then an acting justice of the sessions and sat as such member of said court during the trial of said Ostrander, and all of said trial, together with one Maxfield, a justice of the peace in and for the town of Annsville, New York; that said Maxfield at that time, or at the time of his election, had not two years to serve as such justice of the peace in and for said town of Annsville.
    Upon reading to the Oyer and Terminer the affidavit, the substance of which has been quoted, the prisoner’s counsel requested the court, among other things, to hold as a matter of law : 1st. That the trial and conviction of the prisoner was
    illegal as the court was illegally and improperly constituted ; that Benjamin B. Kenyon and Maxfield, nor either of them, were constitutional justices of the peace and not qualified to sit as justices of the sessions on said trial.” ... “ Also that no sentence can now be given the prisoner unless said court shall be organized as at the time of his said trial.” ....
    The Oyer and Terminer made an order denying the applications made by the prisoner and from the order so made the prisoner on the 12th day of March, 1883, appealed to this court. The Oyer and Terminer proceeded to fix a new day for the execution of the sentence.
    
      Milton D. Barnett and Leonard Bronner, for the prisoner, appellant.
    Section 515 of the Code of Criminal Procedure having abolished writs of certiorari in criminal proceedings, the appeal herein was properly taken and is a new proceeding to be conducted according to the Code. It is settled that if plaintiff in error wishes to show error not appearing necessarily on the statutory return, he must have a record showing it made up and returned. Denb v. People, 46 How. Pr. 264 ; Hildebrand v. People, 1 Hun, 19; Manke v. People, 74 N. 7. 422. See also Cancemi v. People, 18 N. Y. 128 ; People v. Stephens, 19 Id. 551.
    The proper way for a party to protect his legal rights, whether technical or. meritorious, after judgment of conviction, and when tire errors relate to matters extrinsic of the judgment record, is by. motion, Hayen v. People, 3 Park. 179; People v. McCann, Id. 272.
    The court of Oyer and Terminer at which Ostrander was tried was improperly constituted. Justices of the peace are town officers- as to- civil jurisdiction: but possessing county powers as to their criminal jurisdiction. People v. Keeler, 25 Barb. 421 ; 17 N. Y. 381.
    The justice of the peace referred to in our constitution and laws, is always such an officer having civil and criminal jurisdiction united. Boston, &c. Mills v. Eull, 37 How. 299 ; Mills v. Winslow, 2 E. D. S. 18.
    What is meant by a justice of the peace is a constitutional justice of the peace, whose official grade and place is defined, and whose election is provided for and term of office fixed, and such only are eligible to the office of justice of sessions. All other justices that hold courts not of record are regarded in the constitution as inferior to justices of the peace. Officers and courts of limited jurisdiction take nothing by implication. Jones v. Reed, 1 Johns. Gas. 20 ; Harrington v. People, 6 Barb. 607. The constitution, art. 6, §§ 15, 18, art. 14, § 10, makes the justice of the peace referred to, a constitutional officer whose powers cannot be changed, and seems to relate to justices of the peace of towns. Art. 6, § 19, seems to provide only for courts in cities and it has always been held that justices of the peace of cities have been created under said latter provisions for “ inferior local courts of civil and criminal jurisdiction.” Boston Silk, &c. Mills v. Bull, 37 Bow. 299 ; Mills v. Winslow, 2 E. D. S. 18; Jackson v. Whedon, 1 Id. 141; Davis v. Hudson, 5 Abb. 64. See also Brandon v. Avery, 22 N. Y. 469; Geraty v. Reid, 78 N. Y. 64 ; Waters v. Langdon, 40 Barb. 408; Wenzler v. People, 58 N. Y. 516. That the justices of the peace of the city of Rochester are not justices in a constitutional sense of the term, see People ex rel. White v. City of Rochester, 11 Hun, 241. Save in Hew York city, no local officer has ever been allowed to sit in Oyer and Terminer.
    The objections being jurisdictional were not and could not be waived. Cancemi v. People, 18 N. Y. 128 ; Stephens v. People, 19 Id. 549; People v. Rathbun, 21 Wend. 509, 542; Pierson v. People, 79 N. Y. 429. It need not have been taken in the technical form of a plea to the jurisdiction, People v. McKay, 18 Johns. 232. See People v. White, 24 Wend. 563.
    That Kenyon was not de facto a justice of the sessions, see Mclnstry v. Tanner, 9 Johns. 135; Clayton v. Per Dun, 13 
      Johns. 218 ; People v. White, 24 Wend. 541; People v. Carter, 29 Barb. 211. The fact that ho was named and elected as justice of the peace and afterwards justice of the sessions, does not make him such. It is the power and not the name, which makes the office. Wenzler v. People, 58 N. Y. 513; People v. Carter, 29 Barb. 211 ; People v. Raymond, 37 N. Y. 428 ; People v. Albertson, 55 N. Y. 50.
    Under section 962, Code Crim. Pro. the court had no power to sentence the criminal in the absence of the two associate justices. See Willett v. People, 27 Hun, 471; People v. Sessions, 10 Abb. N. C. 195, 225; Ostrander v. People, 28 Hun, 38.
    As to what constitutes a legal court of Oyer and Terminer, see People v. Shaw, 63 N. Y. 37; 3 Hun, 281; Blend v. People, 41 N. Y. 604 ; Weed v. People, 31 N. Y. 468.
    
      W. A. Matteson, district attorney, for the people, respondent.
    The indictment having been found in January, 1881, the provisions of the Code of Criminal Procedure do not apply to proceedings herein. § 962. But the order appealed from is not the subject of appeal under the new Or old practice. The writ of error brings up only errors appearing on the record as presented by the judgment and bill of exceptions, which latter can only contain exceptions taken on the trial. People v. Casey, 72 N. Y. 393 ; Gaffney v. People, 50 Id. 416; Fralich v. People, 65 Barb. 48; opinion Hardin, J., in this case. Moreover, this appeal is taken by simple notice. The matters here sought to be reviewed are not the subject of appeal under the Code, §§ 517, 485.
    The case was sent to the Oyer and Terminer by the General Term, and the Oyer and Terminer had no power therein, except to execute the judgment of the general term, as directed by its decision.
    There is nothing in the constitution by which it can be maintained that justices of the peace of towns only are eligible to the office of justice of sessions. Haley v. Connell, MS.; Matter of Lumbard, opinion Merwin, J., MS. The eligibility of justices of the peace to said office, does not depend upon the amount of criminal jurisdiction they possess, and the Court of Sessions, or Oyer and Terminer, does not take its jurisdiction from the individual members of the court.
    The law does not require that a justice shall have two years to serve when he is elected justice of sessions. L. 1847, ch. 470, § 34 ; Nelson v. People, 23 N. Y. 296.
    The members of the court were, at least, officers defacto, and their acts are valid as to matters affecting the public and third parties. People v. White, 24 Wend. 540; People v. Stevens, 5 Hill, 617 ; Morris v. People, 3 Den. 396 ; People v. Covert, 1 Hill, 674; People v. Colt, 3 Id. 438; Mclnstry v. Tanner, 9 Johns. 134; 2 Kent Comm. 295. The title to the office can only be inquired into by quo warranto. People v. Draper, 24 Barb. 265; Matter of Whiting, 2 Id. 513 ; Matter of Wakker, 3 Id. 163 ; Tappan v. Gray, 9 Paige, 507.
    The motion to amend the record was properly denied. The matters sought to be added did not occur at the trial, and did not form the basis of any exception taken thereon. The record at the time of the motion was the record of the General Term, and the Oyer and Terminer had no authority to change, or add to it.
   Hardin, J.

[After stating the facts as above.]—By chapter 25 of the Laws of 1870, the city of Borne was incorporated. 1 Laws 1870, 40.

The first section of the charter declares viz : All that part of the county of Oneida, now known as, and being the town of Borne, shall be a city known as the city of Borne, .... etc. Section 1 of article II. contains provisions enumerating the offices of said city, and among them it is declared that ‘ four justices of the peace ’ shall be elected by the city at large; and section 10 of the same article declares viz.: The term of office of the justices of the peace to be elected under this act, shall commence on the first day of January next ensuing their election, and each of such officers shall take the oath of office within ten days thereafter, and file the same with the clerk of Oneida county.”

In section 13 of title 4, it is declared viz.: “ The justices of the peace of the said city shall have and exercise all the powers, authority and jurisdiction, and discharge all the duties, and be entitled to the fees, and compensation of justices of the peace of the several towns in the state, except as modified by this act.”

“And all laws applicable to justices of the peace of the several towns, and to their official acts, duties and powers shall apply to the justices of the peace of said city, and to their official acts, duties and powers.”

In section one of title seven is a provision conferring upon the Recorder “sole and exclusive jurisdiction in said city to issue all criminal process required to be issued by the justices of the peace of the several towns of this state, to hear all complaints .and to conduct all examinations in criminal cases, hold courts of Special Sessions and to do and perform all the duties of such courts, and to conduct and try all matters of a criminal nature, which may by law be done or tried by a justice of the peace or by two justices of the peace.” Then follows in section 3 of the same title, a provision in case of sickness, absence from the city, disability or inability to act of the said recorder conferring and imposing “ his powers and duties ” upon either of the several justices of the peace of said city.

We are of the opinion the charter in its provisions as to justices of the peace is valid, and that it was competent for the legislature to confer upon them the powers enumerated in the charter, and to withhold from them in the cases presented the powers, which otherwise would devolve upon them. Section IS of article 6 of the constitution as it was amended in 1869 was in force.when the charter was passed; that section of the constitution declared, viz. :

“ Justices of the peace and district court justices shall be elected in the different cities of the state in such manner and with such powers and for such terms respectively as shall be prescribed by law.”

It was clear then that when Kenyon was elected a justice of the sessions he was a “ justice of the peace,” and he was eligible to the office of justice of the sessions. See. 15 of art. 6, constitution. He was a justice of the peace in the county of Oneida and, therefore, within the terms of section 40 of chapter 280 of the Laws of 1847, eligible to the office of justice of sessions. However, if there was a doubt in our minds in respect to his eligibility to the office of justice of sessions, we should incline to the opinion that he was a justice of sessions defacto, and that his acts would be valid and binding upon third parties until questioned and declared invalid in a proceeding of quo warranto directly had for that purpose, and that the Oyer and Terminer of January, 1883, where the motion was made to -fix a new day for the execution of the sentence of the prisoner, had no power to set aside the conviction and judgment thereon, with the affirmance thereof by this court pronounced in October 1882.

In People v. White, 24 Wend. 526, Bnoxson, J., said: But this is a case where officers having apparent authority to do the act have rendered judgment between the people and the prisoner, and neither party can, in this collateral way, call in question the title of the judges. If there had been judgment of acquittal it would have precluded the people, and the-prisoner could not have been further prosecuted.” Approved, 23 N. Y. 296. See Morris v. People, 3 Denio, 397; In re Wakker, 3 Barb. 162; Cronin v. Gundy, 16 Hun, 524. The affidavit used in the Oyer and Terminer when the order was made which we are considering stated that Maxfield, who was a justice of the peace of the town of Annsville at the time of his election, had not “ two years to serve as such justice of the peace in and for the said town of Annsville.” That fact does not impeach or impair his right to act as a justice of sessions. In section 34 of chapter 470 of the Laws of 1849 it was provided, viz.:

“ That no justice shall be so designated unless he shall be entitled to serve as a justice of the peace during such year by virtue of the election under which he shall be acting as such justice at the time of such designation.” This provision was an amendment of section 40 of chapter 280 of the Laws of 1847 which required a justice of the peace to be eligible, to have at least two years from the first day of January next after said election to serve. “ The later statute controls, and Maxfield was de jure a justice of sessions.” Nelson v. People, 23 N. Y. 293.

There was no error in refusing to amend the record in respect to what took place in the Oyer and Terminer before the trial of the prisoner. The application came late. The record as made up had been presented to this court and acted upon, and our judgment, based upon that record, was conclusive upon the Oyer and Terminer, where the prisoner was taken in January, 1883, for the purpose of having a day named for its execution. Besides, there was no proof upon which the court could act which indicated that the judgment record was erroneous. The motion in regard to what transpired in regard to entering a special plea after a general plea of not guilty was properly denied.

These views lead us to conclude that no error was committed by the Oyer and Terminer held in January, 1883, in making the order directed by it and entered in Oneida county as of the term commencing January 29, 1883.

Fourth. It is now urged that the Oyer and Terminer sitting in January, 1883, held by a justice of this court, without any associate, erred in holding that it had power to sentence the prisoner without the two associate justices being present. On June 4, 1882, by chapter 360 of the laws of that year, section 23 of the Code of Criminal Procedure was amended so as to read, viz. : A court of Oyer and Terminer is held by a justice of the Supreme Court without an associate,” .

After its passage there was no law which authorized justices of sessions to sit in the Oyer and Terminer. The prisoner’s counsel calls our attention to section 962 of the Code of Criminal Procedure actions. That section declares that “ criminal actions” and •“ proceedings in criminal cases” theretofore commenced must be conducted in the same manner as if this had not been passed. This provision does pot relate to the organization of the court. Fuller effect may be given to the words of section 962 by limiting them to “ the manner ” ip which proceedings or actions shall. be “ conducted ’■’ after they are taken up by any court to which they shall be presented. Tlie organization of a court is one thing; its manner of conducting its proceedings or actions pending in it is quite another.

Giving full effect to section 23 as amended ip 1882 and to section 962 we hold that the Oyer and Terminer was rightly organized when a justice of this court sat alone, as section 23 prescribes he may without associates. Willett v. People, 27 Hun, 470,

The views we have expressed lead us to say no error was committed by the Oyer and Terminer of January, 1883.

Had the district attorney moved to dismiss the appeal taken from the order we should have been inclined to grant the motion. There is no provision of the Code of Criminal Procedure authorizing such an appeal as the one now before us. Section 517 authorizes an appeal to this court “from the judgment on a conviction after indictment, and upon the appeal any actual decision of the court in an intermediate order or proceeding forming a part of the judgment roll .... may be reviewed.” This does not authorize an appeal in piecemeal, first from a judgment, and after it is affirmed, an appeal from any subsequent order by a subsequent and independent appeal. See Piper v. Van Buren, 27 Hun, 384 ; Code Criminal Procedure, § 485.

As such motion was not made, we have looked into the merits, and come to the conclusion that the order ought not to be reversed by us under the peculiar circumstances.

We conclude to affirm the order, instead of dismissing the appeal upon our motion.

Order affirmed and papers ordered filed with the clerk of Oneida county.

Smith, P. J., and Macombee, J., concur.  