
    CHARLES M. MAYER, Plaintiff and Respondent, v. THEODORE APFEL and SIGMUND APFEL, Defendants and Appellants.
    
      [Decided December 31, 1870.]
    Contested motions will be entertained and heard only at the regular Special Term of this court, unless differently ordered by the judge holding such term.
    The practice of one judge vacating the order made by another, and hearing, and deciding the subject-matter heard and considered by another judge, deprecated.
    The power or authority for such a proceeding is bad in practice, and the cases where the power is exercised should be very extreme and exceptional, and has neyer beep, tolerated in this court.
    Before Barbour, C.J., Monell and Spencer, JJ.
    An order of arrest was granted in this action by Mr. Justice McCunn, in April, 1869, and the defendant Sigmund Apfel was held to bail thereon.
    The defendant moved at a Special Term of this court, held in May, 1869, by Mr. Justice McCunn, to vacate said order of arrest, and an order was thereon made that the motion be referred to A. J. Smith, as referee, to hear and report the facts involved in such motion, who reported the facts found by him, Sept. 23, 1869. The plaintiff took up said report and paid the referee his fees, and on the 30th September, 1869, served a copy of said report on defendants’ attorney, with a draft of a proposed order in the premises, and a notice of an application for such an order on said report, returnable on the 1st of October, 1869, at 11 a.m., before Mr. Justice McCunn.
    The latter justice was not holding the regular Special Term of this court at the time of said notice or on the return day of the same, but Mr. Justice Freedman, the justice assigned to said Special Term, was holding the same, but the parties appeared before Mr. Justice McCunn on the return day of the notice, and he entertained the argument and hearing of the same, and the following order was entered upon his decision in the same manner as if the motion had been heard and decided at Special Term:
    Superior Court, New York City.
    Ch. M. Mayer v. Theodore Apfel and Sigmund Apfel.
    At Chambers of said Court held at the City Hall, New York City, October 1st, 1869.
    Present—Mr. Justice McCunn.
    A motion having been made heretofore in this action by the defendant, Sigmund Apfel, to vacate the order of arrest heretofore granted against him, herein, and it having been referred by his honor, Mr. Justice McCunn, to A. J. Smith, Esq., as referee to hear and report upon the facts involved in such motion, and the said parties having, pursuant to such order of reference, appeared before such referee.
    And the said referee having duly made and signed his report in said matter, and addressed the same to this court.
    Now, on the coming in of the said report, and on motion of W. L. Flagg, Esq., attorney for the plaintiff in this action; J. Landesman appearing for defendants to oppose.
    It is hereby ordered that the said report of A. J. Smith, Esq., referee, as aforesaid, be filed with the clerk of this court, immediately upon the entry of this order, and that the said motion of the said Sigmund Apfel, defendant in said action, to set aside and vacate the said order of arrest, be and the same is hereby denied, with two hundred and fifty dollars costs and disbursements of said motions, reference, etc., to be collected by the plaintiff of the said defendants.
    A Copy.
    Jambs M. Sweeny, Clerk.
    
    At the regular Special Term held in October, 1869, by Mr Justice Jones, the defendants’ attorney, upon affidavit and the papers, moved to set aside the order last named, for irregularity.
    
      First.—That the said order was made upon, the decision of Hr. Justice HcCunn, while sitting in Trial Term, and not at the regular Special Term of the court, the latter being held at the time by Hr. Justice Freedman. That defendants’ attorney appeared before Hr. Justice HcCunn under protest, and urged the irregularity of the proceedings and his protest, and the matter was submitted on said defendants’ preliminary objections, and not otherwise.
    
    Second.—That said report of said referee was not filed before the making of said order, and defendant had no opportunity to file his exceptions thereto, and had no opportunity to be heard on the coming in of said report, nor on the argument, etc.
    And defendant claimed that the order should be set aside for these alleged irregularities.
    The plaintiff, answering to this motion, filed an affidavit of his attorney who argued the motion before Hr. Justice HcCunn, to the effect that the attorney for the defendant appeared before Hr. Justice HcCunn, and fully argued on the merits of the motion, and made no protest, nor any statement “ that he appeared and a/rgued said motion under protest, nor anything of the kind.”
    
    Hr. Justice Jones denied the motion to set aside the order for irregularity.
    From this decision of the Special Term, the defendants appealed to the General Term of this court.
    
      Mr. Willam L. Flagg for respondent.
    
      Mr. John Landesman for appellants.
   By the Court:

Spencer, J.

The learned judge who made the decision, upon which the order appealed from was made, states in his opinion that if the defendants’ attorney appeared before Hr. Justice HcCunn, and argued the motion to vacate the order of arrest, upon the report of the referee, that the decision of Hr. Justice McCunn, and the order entered thereupon, cannot be reviewed at Special Term, on a motion to vacate the same. That the remedy of the person aggrieved was by appeal. That the question as to whether the defendants’ attorney did so appear was a contested one. The defendants’ attorney in his affidavit stating that he did not, and the affidavit of the plaintiff’s attorney, and also the order entered, stating that he did so appear, and Mr. Justice Jones holding that the weight of evidence being clearly in favor of the appearance and argument without protest, or preliminary objection, he decides that the facts warrant his decision against the motion to vacate the order.

I think that the decision upon the facts at the Special Term upon this motion were clearly within the judgment and discretion of the justice holding the same, and cannot be reviewed by the appellate court.

I am also of the opinion that his conclusion of law upon the facts was also correct, and should be affirmed. The defendants’ attorney was not bound, by the rules and practice of this court at the time, to go before Mr. Justice McCunn, on this notice, and submit to the hearing of the same before him; yet if he did so, and argued the motion upon the merits, without protest, the said justice was authorized to entertain said motion, and to hear and decide the same. All the parties interested consented, by their action in the premises, that this motion should be heard before Mr. Justice McCunn, as if he was holding the regular Special Term, and thereby waived all irregularities. It has been held by several learned justices in the Supreme Court, and other courts of this State, that an order made at one Special Term, or by one judge, could be vacated and the subject-matter heard and decided at another Special Term, held by a different justice, thus substantially causing the decision of one judge to be reviewed by another judge of the same court. Whatever may be the power or authority for such a proceeding, it is in my opinion bad in practice, and the cases where the power is exercised should be very extreme and exceptional, and I believe this practice has never been tolerated in this court. I think I can speak for myself and assodates when I say that we feel bound to sustain and to abide by the dedsion of any one of the judges of this court, when acting within his power and jurisdiction as a judge, until the same shall be reversed by the General Term. A late decision of Mr. Justice Cardozo, at a Special Term of the Supreme Court of this district, to this effect, meets with my full and cordial approval.

The late amendment to the constitution, and the changes in the organization of the Supreme Court and the Court of Appeals of this State, will afford an opportunity to the judges of the courts of this State to establish an improvement in the practice of our courts, by securing uniformity and agreement in their decisions upon the practice, and by removing the evils of uncertainty therefrom, which has arisen from -the diversity of opinion among the judges upon the same points.

This court has lately adopted some rules (Rules 6, 7, 8 and 10, of March, 1870), in regard to the notice and hearing of motions, that very plainly inform the members of the bar that no contested motions will be entertained nor heard except at the regular Special Term, unless differently ordered by the judge holding such Special Term.

Rule thirty-two does not apply to this kind of report of a referee. The order of the Special Term should be affirmed with costs.  