
    The People ex rel. Horace M. Lower, Resp’t, v. Timothy J. Donovan, Impl’d, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.
    
    1. Service—Election day—Mandamus.
    Section 4 of chap. 130, Laws 1843, prohibiting the service of civil process on an elector on election day, Was intended to preserve the rights of an elector, and does not apply to a process or proceeding against a board or chairman thereof having public duties to perform, as an inspector of election, and does not prevent service on him of a mandamus requiring him to permit a relator to vote.
    3. Same.
    Section 5 of said act relates to the sessions of courts anfl the organization thereof on election day, and does not interfere with the power of tdges to grant remedies that they have the right to grant irrespective of he statute, and does not appy to an application for a mandamus to a judge in the first judicial district.
    .‘3. Same—Surplusage.
    An alternative mandamus required the defendant to. appear before the judge granting it at “ special term " at chambers. Held, that the use of the words “ special term” was surplusage.
    •4. Same—Clerk.
    The provision of the statute requiring the clerk’s office to be closed on election day does not prohibit his sealing and attesting an order granted by a judge on that day.
    Appeal from order convicting the appellant Donovan, an in:spector of election, of contempt.
    P. V. R. Van Wyclc (Henry Grasse, of counsel), for app’lt; David Leventritt and Charles H. Knox, for resp’t
   Per Curiam.

At the election on the Sd of November, 1891, the appellant was the chairman of the inspectors of election in the .•seventh election district of the second assembly district. On that •day an order to show cause was granted by a justice of this court, returnable at a later hour of that day, why a peremptory writ of mandamus should not issue commanding the inspectors to allow •She relator to vote. This order was served, and upon the return, the appellant not appearing, a peremptory writ was granted. Notwithstanding the service of the peremptory writ, the appellant, subsequently refused to permit the relator to vote, and he relies-on this appeal upon several grounds in justification of his willful disobedience of the order referred to.

The question now before the court is not as to whether, if contested, the writ of mandamus would or would not have been granted.

The writ was granted, allowed by the justice, signed by him and by the county clerk, duly served and willfully disobeyed.

There is, therefore, but one question which needs our consideration, and that is whether the writ itself is void. And to show this the appellant relies upon two grounds: First, the statute-which provides that no civil process or proceeding in the nature of civil process shall be served on an elector- entitled to vote in any city or town on the day on which such election shall be had,, chap. 130, Laws of 1842, § 4, title 1; 1 Rev. Stat., 6th ed., 427;; and, Second, § 5 of the same statute, which provides that no court, shall be opened or transact any business in any city or town on the day on which such election shall be held therein, unless it be-for the purpose of receiving a verdict or discharging a jury.. * * * But this section shall not prevent the exercise of jurisdiction of any magistrate when it shall be necessary in criminal, cases to preserve the peace or to arrest offenders.

In reference to the first section (§ 4, sup.), it need only be said that that does not apply to a process or proceeding directed against, a board or a chairman thereof having public duties to perform, such as was the position occupied by the appellant in the case at. bar, but was intended to preserve the rights of an elector, and is-expressly referred to as such in the title, § 4 being “ Priyileges of" Electors.”

As to § 5, under which it is insisted by the appellant that there? is no power in the court or a justice of the supreme court to grant, or issue a mandamus on any day on which a general election is held in this state. The answer to that proposition is that § 5-does not affect the power of a judge at all. It merely prescribes that no court shall be opened or transact business in any city or town on the day of such election unless for the purpose of receiving a verdict, etc.

It merely related to the sessions of courts, and to the organization of courts on election day, and does not interfere with the-power of judges to grant remedies that they have the right to-grant irrespective of that statute.

By express provision of the Code, § 770, in the first judicial district, a motion which elsewhere must be made in court may be-made to a judge out of court except for a new trial on the merits.. Section 768 defines what a motion is, viz: an application for an order is a motion. Section 767 defines what an order is, viz: a-, direction of a court or judge made as prescribed in this act, in-an action or special proceeding, unless it is a judgment, is an order.

Therefore the application for a mandamus is a motion and the issuing of the mandamus is an order under the definition .of the Code.

But it may be said that § 2068 takes the application for a mandamus out of the general provision of § 770 before referred to; which is, that except where special provision is otherwise .made in this article a writ of mandamus can be granted only at ■a special term of the court. The exception in regard to the special provision, it is to be observed, is an exception in favor of an application to the general term under certain given circumstances.

Therefore it is apparent that anywhere except in the first judicial district an application for a mandamus must be made at a special term. But it is clear that it was not the intention of the legislature to restrict or to vary the practice in reference to applications which may be made out of court in the first judicial district; and in this particular instance to restrict the power of ■ the judge. It was the policy of the legislature to give the judges in the first judicial district all the powers of a court without the formality of being in court. Hence the provision that a motion which elsewhere must be made in court may be entertained by a judge out of court in the first judicial district It seems, therefore, to follow that the provisions of the statute respecting the holding of courts have no application to an order which may be made by a judge in the first judicial district out of court.

It may be said, however, that the order to show cause which was issued and which formed the foundation for the allowance of the" mandamus was made returnable at a special term of the court.

The language of the order required the respondent “ to show cause before me, at a special term thereof to be held at chambers in the county court house." It is apparent that the use of the words “special term" was surplusage, for the reason that the order is returnable before the magistrate or judge who granted -the order, and before him individually. It was evidently not intended to be made before- the court, because the court is the same whether held by one judge or another. Therefore, the order to show cause was returnable before the judge, and the mandamus was issued by the judge, and the prohibition heretofore spoken of clearly does not apply.

It is, however, insisted that the writ is void because the county clerk had no authority to seal the writ, it being provided that the county clerk’s office shall "be closed on that day. This is true as to ordinary business to be done in the office of the county,clerk; but where a judge has the power to issue a writ which requires the seal of a particular officer, he certainly has the power to make it effectual by procuring it to be properly sealed and attested by ■the clerk. It is to be observed that nothing is said in regard to the county clerk not acting as clerk, but simply that the county clerk’s office shall be closed.

- Having examined the questions presented, we find no reason for disturbing the conclusion reached by the judge below, and the order should therefore be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Patterson, JJ., concur.  