
    The Fifth Avenue Bank of New York, Respondent, v. The Forty-second Street and Grand Street Ferry Railroad Company, Appellant.
    
      Appeals—exceptions taleen at a Circuit Court in 1891 and ordered to be heard in the first insta,nce at General Term — such order must be made at the same term and by the same judge — an oral direction is insufficient — the Supreme Court has no power to subsequently order the exceptions to be heard by- the Appellate Division— Constitution of 1894, art. 6, § 6— Code of Civil'Procedure, §§ 2, 769, 1000 (1891).
    Upon an appeal in an action by the defendant from an order of the Supreme Court, directing that the exceptions of the plaintiff be heard by the Appellate Division, it appeared that the action was tried at Circuit in October, 1891, when the plaintiff requested the court to direct a verdict in its favor for the value of 210 shares of the defendant’s stock, which request was denied and the plaintiff excepted. The plaintiff then moved that a verdict be directed in its favor for the value of 160 shares. “The court then directed a verdict for the plaintiff in the sum of $87,928.80, and ordered the exceptions to he heard in the first instance by the General Term,” and to this direction the defendant excepted. During the same term the defendant entered an order that its exceptions be thus heard.
    Four years later the plaintiff applied to the Supreme Court at Special Term to have an order entered directing its exceptions to be heard by the Appellate Division, and such an order was made.
    
      Held, that there was no authority for the granting of such an order;
    That under the Code of Procedure as it stood in October, 1891, such an order must have been made at the same term' and by the same - judge who presided at the trial;
    That, as the courts were independent tribunals, when the October Term of the ' Circuit Court, held in 1891, ended without a direction in writing that the exceptions should be heard in the first instance at General Term, that method of review was ended; a mere oral direction would not be a compliance with the statute;
    That this action was not pending in a Circuit Court when the Constitution of 1894 went into effect;
    That there was no authority in the Supreme Court to direct that exceptions taken in a Circuit Court, which had ceased to exist, should be heard before the Appellate Division;
    That, if the order were to he treated as the formal reduction to writing of the eral direction of the trial judge, then the order was one made in a court which had ceased to exist.
    Appeal by the defendant, The Forty-second Street and Grand Street Ferry Railroad Company, from an order of the Supreme Court, made at tlie Hew York Special Term, and entered in the office of the clerk of the county of Hew York on the 19th day of February, 1896, directing that the exceptions of the plaintiff, taken at the trial of this action at the Circuit Court in October, 1891. be heard before the Appellate Division of the Supreme Court.
    
      Frelmg H. Smith, for the appellant.
    
      Edward G. James and Abram 1. Flkus, for the respondent.
   Barrett, J.:

This action was tried at a Circuit held in the county of Hew York in the month of October, 1891. When the testimony was all in, the plaintiff requested the court to direct averdict in its favor for the value of 210 shares of the defendant’s stock. The motion was denied and the plaintiff excepted. The court then,' upon the plaintiff’s motion, directed a verdict in its favor for the value of 160 shares of the defendant’s stock. To this direction the defendant excepted. The court then, to quote from the record, ordered the exceptions to be heard in the first instance by the General Term.”

Upon the twenty-eighth of the same month and during the same term, the defendant' entered an order upon this direction, that its exceptions be thus heard. Ho such order, however, was entered by the plaintiff. Four years later- the plaintiff made the application now under review, which was an application to the Supreme Court at Special Term to have an order then entered directing its exceptions so taken upon the trial at Circuit in October, 1891, to be. heard at this Appellate Division. This application was granted and such an order.was made. From that order the defendant appeals.

Section 1000 of the Code of Civil Procedure, as it was in force in October, 1891, provided that the judge presiding at the trial might, in his discretion, at any time during the same term, upon the application of a party who had taken one or more exceptions, direct an order to be entered that such party’s exceptions be heard in the first instance at the General Term. This was, and is, the only provision of law for the exceptional procedure in question. We find nothing in the record to indicate that the plaintiff resorted to this procedure or that it was its intention to do so. Hor did the trial judge at any time during the term, either upon the plaintiff’s application or upon his own motion, direct an order to be entered that the plaintiff’s exceptions be thus heard, nor was any such order entered in the minutes of the court. The only application which the plaintiff made was for a verdict in its favor. The record reads as follows: “ The court then directed a verdict for the plaintiff in the sum of $37,928.80, and ordered the exceptions to be heard in the first instance by the General Term. Defendant excepts.”

If the trial judge meant by this general expression “ the exceptions ” to cover the exceptions of both sides, and if the plaintiff so understood him and desired to proceed in that manner, why was not an order prepared and entered upon the oral decision thus made % The plaintiff saw that its adversary prepared and entered such an order Upon its own account, and that that order limited the direction to the defendant’s exceptions. It would seem, therefore, that the matter was not overlooked, and that the plaintiff did not then desire, and consequently did not apply for, such written direction. It knew or should have known that what the trial judge orally directed was not the direction contemplated by the statute. A direction of a court or judge must be in w'riting unless otherwise specified in the particular case. (Code Civ. Proc. § 767.) Nothing was otherwise specified in this particular case. What was required by section 1000 of the Code, therefore, was a direction in writing signed by the judge presiding at the trial. That written direction might have been given in his discretion at any time during the October term. It could not have been given after that term. When the October term of the Circuit Court ended without that direction in writing having been given, the door was closed, so far as this special method of review was concerned. The Circuit Courts were not mere branches or terms of the Supreme Court. Jury cases pending in the Supreme Court were tried there.- But the courts themselves were independent tribunals, the same as were the Courts of Oyer and Terminer. (Code Civ. Proc. § 2.) The Supreme Court was never authorized to make the order referred to in- section 1000 where the trial was had in a Circuit Court. That order was solely within the discretion of the judge presiding at the trial at Circuit, and the exercise of that discretion was limited to the term of the Circuit Court at which the trial was had. If the trial judge failed to effectuate his oral' direction by a direction in writing given before the end of the term, an appeal could only be taken and heard in the ordinary manner. The Suprenie Court certainly could not make the order for the trial judge nor could it direct the entry of an order which he had not made.

There are other considerations which point with equal force to the lack of authority for the order appealed from.

Since the trial of this action Circuit. Courts nave oeen constitutionally abolished, and when the present motion was made these courts had ceased to exist. At the time of the trial the learned judge who presided was a judge of the Superior Court of this city who had been assigned to duty in the Supreme Court. His term of office as such judge expired upon the 31st day of December, 1894. He then ceased to hold judicial office "until the 1st day of. January, 1896, when he became (by election- had in November, 1895) a justice of the Supreme Court. The jurisdiction of the Circuit Courts Was by the new Constitution vested in the Supreme' Court, and all actions and proceedings pending in such courts were transferred to the Supreme Court for hearing and-determination. (Const. art. 6, § 6.). But this action was not pending in the Circuit Court when the new Constitution went into effect, nor was any proceeding in this -action then pending therein. The order appealed from, was, therefore-, a direction made by "and in the Supreme Court that an exception taken in the Circuit Court-(which had then ceased to exist) be heard before this Appellate Division. For this direction we know of-no authority. If, however, the Order be treated, as -the plaintiff contends it should be, as the formal reduction, to Writing of what the trial judge had orally directed, then we have an order made in a court which has ceased to exist by a judge who has ceased to "exist judicially. ' This objection to the order is not affected by the fact that the learned judge who originally-presided at the trial happened to be the particular justice of the Supreme Court :who made the--present order. . This,order was made by the Supreme Court at Special Term, Mr. Justice Tbuax presiding. Mr. Justice Tbuax of the Supreme Court could not enter an order upon an oral direction made by a former judge of the Superior Court while acting as a justice of the. Supreme Court, although that former judge happened to he himself. (In the Matter of the Mayor, etc., 139 N. Y. 140.) Nor could the Special Term of the Supreme Court, though presided over by Mr. Justice Truax, direct that exceptions which were formerly taken at a term. of an abolished Circuit Court be heard in the first instance at this Appellate Division.

We migh advert to the fact that the defendant’s exceptions were overruled by the General Term, and judgment rendered in the plaintiff’s favor upon the verdict which was directed at the trial. That judgment was subsequently affirmed by the Court of Appeals, and thereupon the judgment was paid and satisfied. All this had happened before the motion under review was made. It is difficult to perceive how thereafter the plaintiff could, under any circumstances, have its exception heard in tins manner.

The order appealed from should be reversed^ with ten dollars, costs and disbursements, and the motion denied, with ten dollars, costs.

Van Brunt. P. J., Bumsey, O’Brien and Ingraham, JJ.,. concurred.

Order ■ reversed, with ten dollars costs and • disbursements, and! motion denied, with ten dollars costs.  