
    The People of the State of New York, Respondent, v. William W. McLaughlin, Appellant.
    No. 1.
    
      Criminal action — motion to change the place of trial — it is a special proceeding in the Supreme Coun't requiring the ten days’ notice, which cannot he shortened —an order shortening the time is erroneous, hut not void—the trial may proceed unless stayed^-Laws 1859, chap. 462—Code of Civil Procedure, §§ 3333, 3334, 767, 768— Code of Criminal Procedure, §§ 346, 347.
    "Where the Legislature has prescribed the time within which a proceeding should be taken, its requirements are binding on the courts,- and should be observed.
    'Time should not be shortened in any case where the Legislature has fixed the time, except as a condition of granting a favor.
    Where the facts presented upon an,application to change the place of trial of .a ■ criminal action deserve serious consideration, it is 'erroneous for the court to deny the motion peremptorily.
    , Prior to the Code of -Criminal Procedure, the proper procedure for the change of the place of trial of an indictment for a felony was by a motion made in the Court of Oyer and Terminer, where the motion could be made either by the People or by the defendant. This procedure was changed by the Code of -Criminal Procedure, and such a motion can now be made by the defendant -only, and must be made at a Special Term of the Supreme Court on at least ten days’ notice to the district attorney.
    The criminal action is not removed from the Oyer and. Terminer by the motion to change the place of trial, but that court is at liberty to proceed with the trial in the ordinary form, unless the trial is stayed in the manner provided in section 347 of the Code of Criminal Procedure.
    
      The motion to change the place of trial becomes a special proceeding in the Supreme Court, to be commenced by the service of affidavits and by a notice of motion, upon the service of which papers the Supreme Court acquires sole jurisdiction, and can at once do such acts' as postpone q, hearing or allow further papers to be served, but it cannot act upon the question of changing the place of trial except upon a notice of at least ten days, as prescribed in section 346 of the Code of Criminal Procedure, which time it cannot properly, by an order to show cause, shorten; but, if it does so, its' action is -erroneous, but not void, under the rule that, where a court has acquired jurisdiction by the service of due process, its action in the proceeding, while it may be mistaken and, therefore, reversible, is not void.
    The defendant has a right to say when a motion to change the place of trial of an indictment shall he made, and if the day which he fixes is so far off that a delay of the trial until that time would obstruct the administration of justice, the court may vacate the stay granted upon a proper motion for that purpose, or may impose an earlier hearing of the motion as a condition of allowing the stay to remain in force; but the court has no power to fix any other time than that named by the defendant for the hearing of the motion.
    Appeal by the defendant, William W. McLaughlin, from an •order of the Supreme Court, made at the New York Special Term •and entered in the office of the clerk of the county of New York on "the. 20th day of May, 1895, granting the relief prayed for in an ■order to show cause made in the action, dated May 18,1895, why the return day mentioned in the notice of motion, described in the affidavit ■of John E. Fellows, should not be changed to May 20, 1895, and why the argument upon the said motion for the removal of five •criminal actions against the defendant from the Court of Oyer and Terminer of the city and county of New York to the Court of Oyer and Terminer in some other county of the State of New York .should not then and there proceed forthwith before the said Special Term.
    
      Edward O. James, Abram I. Ellcus and Edward E. McGall, for the appellant.
    
      Remiel G. Rollins and Austen G..Fox, for the respondent.
   Rumsey, J.:

The defendant was indicted for a felony, and his trial took place, in the Court of Oyer and Terminer, iii the month of April, 1895. On the eleventh day of May, the trial was brought to an end by a •disagreement of the jury. The judge presiding at the term at which the trial had just been had, set down the case for another trial on the twentieth day of May, nine days after the end of the first trial. The defendant at once took steps to make a motion to change the place of trial, upon the ground that an impartial trial could not be had in the county of New York. The papers upon that motion, which were very voluminous, were partially finished on the seventeenth day of May, and on that day a notice of motion was prepared, and upon that notice of motion and the affidavits, an order was procured from a justice of this court, staying the trial' of the criminal action until the time fixed in the notice of motion for the hearing of the application to change the place of trial. These papers, which were regular in form, were served on the .district attorney on the afternoon of Saturday, the eighteenth day of May. The trial of the action in Oyer and Terminer had been set down for ten o’clock on the next Monday. The motion to change the place of trial was noticed to be heard at the Special Term to be held on the third day of June, which was seventeen days after the date of the notice and fourteen days after the time when the case was set down for trial in Oyer and Terminer. On the afternoon of the day on which the motion papers were served, the district attorney, upon an affidavit made by him, procured from a justice of this court an.order to show cause, returnable on Monday, May twentieth, at ten-thirty o’clock, why the argument of the motion which had been noticed by the defendant to be heard on the third of June, should not then and •there proceed forthwith before the Special Term. ■ This order to show cause was served about seven o’clock in the morning of Monday, May twentieth, and at the time prescribed in it both parties appeared before the Special Term; the People to bring on the motion mentioned in the order to show cause, and- the defendant simply for the purpose of-objecting to the hearing of the motion, upon the ground that the court had no jurisdiction to require the defendant to- make the motion at that time, and upon other grounds which need not now be considered. The court overruled the objections taken by the defendant, and required him to ¡Droceed forthwith with the motion to change the place of trial. This he. declined to do, and thereupon the court entered an order denying the defendant’s motion to change the place of trial and vacating the stay of the trial.- - From that order this appeal is taken.

The first question presented is whether the court had jurisdiction to make this order. For some years before the time when the Code of Criminal Procedure took effect, the proper proceeding to change the place of trial of an indictment for a felony, was by a motion in the Oyer and Terminer. (Laws of 1859, chap. 462.) That motion being made in the court in which the indictment was pending, was a proceeding in the case and was subject entirely to the control of the court in which the case was pending. This motion in the Oyer and Terminer could be made either by the People or by the defendant. But by the Code of Criminal Procedure, which took eifect in 1881, this manner of proceeding was entirely changed. The criminal action, as the proceedings upon the indictment are called by that Code, was pending in the Court of Oyer and Terminer. The Code juovided that a motion to change the place of trial of any criminal action must be made to the Supreme Court at a Special Term in the district upon notice of at least ten days to the district attorney of the county where the indictment was pending, with a copy of the affidavits or other papers upon which the application was founded. (Crim. Code, § 346.) The Code further provided that to enable the defendant to make the "application a justice of the Supreme Court might, in his discretion for good cause shown by affidavit, make an order staying the trial of the indictment until the hearing and decision of the motion. (Crim. Code, § 347.) It is apparent from these and the subsequent sections of the Code upon the subject, that by this proceeding the criminal action was not removed from the Court of Oyer and Terminer, but still remained pending therein, and the court was at liberty to proceed with the trial of the action in the ordinary course, unless that trial was stayed as provided by the section quoted above. The proceeding, therefore, to change the place of trial was "not a proceeding in the criminal action, but it was a matter outside of that action, brought to obtain relief which was no necessary part of the criminal action itself. It resembled more an application for a writ of prohibition or mandamus directed to an inferior court to direct the course of proceeding in that court in an action which was pending in it, but which did not draw to itself the particular action with regard to which the writ was asked. The proceeding was one in the Supreme ■Court. It' was a proceeding for the enforcement of what was claimed to be a right,, and it was not a civil action, because a civil ■.action is an ordinary proceeding instituted by a summons. (Belknap v. Waters, 11 N. Y. 477, 478.) This one was within the definition -of the Code of Civil Procedure a special proceeding. (Code Civ. Proc. §§ 3333, 3334.) It could only be.commenced by the service •of,the affidavits and notice of motion. When those papers were ■■served upon the People they were brought into court and the proceeding had an inception, and from that time the Supreme Court had jurisdiction of the proceeding because the service of the notice -of motion lay at its foundation, and was the mode prescribed by the •statute' for bringing the People into court upon the application for ihe relief sought. In no other way could jurisdiction be acquired. 'There was no power in the court at that time to assume jurisdiction upon any shorter ' notice any more than there would have been to take jurisdiction of a civil'action, upon summons returnable in less ihan twenty days. But in this proceeding, when the papers were .served upon the People, they were brought into court,.and the court gained jurisdiction as it would have, jurisdiction of the civil action upon the service of a summons. - As it had jurisdiction it had the power to hear and determine the subject-matter in controversy between the parties, and not only to decide the principal question, ■the determination of which was the immediate object of the proceeding, but every, other incidental question which might arise in the course of the proceedings, and which could be brought before the •court for solution. (People ex rel. Davis v. Sturtevant, 9 N. Y. 263, 266.) When, therefore, this notice of motion arid affidavit had been served, the court was in possession of the spécial proceeding. It is •'a court of general jurisdiction, and. having by the service of these papers acquired, jurisdiction to act in the matter, it had the power to ■ decide every question which might be brought before it in .the proper ■ form,'and if it decided erroneously its conclusion, while it might be reversed for error, was not void for want of jurisdiction.' It is quite -true that before it could acquire jurisdiction to act in the matter a notice of motion of at least ten. days must be served, because that is the preliminary step which the law requires should be taken to give the. court the' right to act. But the power to act in the matter came -.into existence upon the'service of the papers. Jt was not necessary for the court, before any act could be done, to wait until the expiration of the time mentioned in the notice of motion for the hearing-to take place to enable it to take cognizance of the proceedings, but-it could in a proper case hear and decide other matters "which might be presented to it before the return day of the order to show cause. For instance, it would undoubtedly be within the' power of the court to postpone the hearing, although the application for that purpose might be made before the time fixed in the notice of motion for bringing on the matter. It might; grant to the moving party the right to serve further papers. Any incidental relief to which either party might be entitled in the course-of the proceedings before the time for hearing thereof, might be-granted by the court by virtue of the general jurisdiction which it had, and which it acquired in this proceeding because of the fact, that the defendant had brought the People into court in the way-prescribed by law. ' Any act done in the proceeding by the court,, after the service of the notice of motion, was done by virtue of its-power as a court of general jurisdiction. By virtue of that power it could take cognizance of any .motion- made in the matter, -for such-motion might be made as well in a special proceeding as in- an action. (Code Civ. Proc. §§ 767, 768.) Such a motion might be brought on. either by an order' to show cause, or by a notice of motion, as in any other action or special proceeding. To be sure, the special proceeding itself could not be originated by an order to show cause, because the court could only get jurisdiction of it in the manner-prescribed by the statute, and that was by the service of a notice of - motion returnable in at least ten days. But it must not' be forgotten, that not only did this notice of motion lay at the foundation of the jurisdiction, but when properly served the jurisdiction attached, and it attached in a court of general jurisdiction with regard to whose-acts from that time on, every presumption is that they were within, its powers. ' After that jurisdiction had been acquired, the- court had the power to entertain any motion which might be made in the* special proceeding, and not only did it have the power, but it was-its duty to decide any question which might thus be presentéd to it.. Its right to decide any such question did not depend upon the correctness of the decision, but having the power to make the decision,, its action was binding until the decision was- reversed. So,, therefore, when there was presented to the SpeciaFTerm on the morning of the twentieth of Hay, an order to show cause in this matter, why the motion should not be heard at an earlier day thaii that for which it had been noticed, this condition-of things existed. A special' proceeding properly commenced, in which all the parties were before the court, was pending, and the court had power not only to grant or deny the relief ultimately sought, but had the power besides to act upon every other question that might be presented to it in the orderly course of practice, and anything which it did in that regard must be attributed to the exercise of the general jurisdiction which it had acquired. . Having that general jurisdiction and having possession of the caiisc under it, it was not divested of the jurisdiction by pror ceedr.ig in any incidental matter in a way not prescribed by the statute. For instance, the statute prescribes that no judgment for default shall be taken until twenty days after the service of summons, and undoubtedly the court should not enter judgment by default on the nineteenth day after the summons Avas received. But the court acquires jurisdiction of the action by the fact of the summons, and if by mistake or otherwise it should direct a judgment to be entered on the nineteenth day instead of the twenty-first- after the service, such a judgment'would not be void but would be simply erroneous, and would either be vacated or reversed in a proceeding taken for that purpose. So the statute prescribed that the trial of an action can be brought on only by fourteen or sixteen days’ notice, but if the plaintiff, having put- his case upon the calendar without serving notice of-the trial, proceeds to bring the case to trial and the court assumes to hear it, even against the protest of the defendant, a judgment entered upon that hearing would not be void, but it would be a- valid judgment until it was reversed or set aside. - The principle is that, >vhere by the service of due process the court has acquired jurisdiction to act, its action thereafter to do anything Avhich the law says may be done in the proceeding, although it may be mistaken and erroneous, is not void but reversible only.

. This principle has also'been recognized in several cases reported in the courts of this State, notably in Von Rhade v. Von Rhade (2 T. & C. 491), decided in the first department. That was an action for-divorce in which,, as is well known, the cotirt has only such jurisdic-. t-ion as is given to it by statute. The summons was served by publication, and instead of waiting until twenty days after the service of the summons, the court on the nineteenth day took the defendant’s default and ordered judgment to be entered against him. A motion was made to set aside the judgment, and it was strongly urged that the action of the court in directing judgment to be entered before the defendant was in default, rendered the judgment void. But this proposition was not acceded to. It was held that the court having acquired jurisdiction by the service of the summons, any departure from the statutory provisions regulating the proceedings before judgment, was only an irregularity which did not affect the validity of the judgment. The court cited the case of D’Ivernois v. Leavitt (8 Abb. Pr. 59), which was also decided by the General Term of this department. The rule laid down in that case was that the want of jurisdiction can never be alleged as to the interlocutory proceedings in an action where the court has obtained jurisdiction originally and renders the proper judgment in the case. The rule is also recognized in Schaettler v. Gardiner (47 N. Y. 404).

It must be borne in mind that the service of the original notice of motion in this proceeding had the effect, not only to tix the time when the moving party sought to bring the matter to hearing, but it also had the effect to give to the court the power from the time of its service to do any act which a court 'of general jurisdiction might do in the course of the particular proceeding. The jurisdiction of the court, which had been acquired by the service of the notice of motion, could not be divested because of the fact that the court in attempting to do some act in the course of the proceeding, did not observe that regularity which the statute required. An order to show cause may be made in a special proceeding as well as in an action, as we have seen. The' judge,- therefore, had jurisdiction undo ubtedly to make the order to show cause, which was returnable on the twentieth of May. When that order was made it was not only within the power, but it was the duty of the Special Term before which it was returnable, to pass upon the question presented by it. That question was whether or not the motion noticed for June third ¡should be heard at an earlier day. As it was the duty of the court to decide .that question we have the case of a court of general jurisdiction presented with a question which it was its duty to decide, and deciding that question, as we think, erroneously, but its decision was not void however erroneous it must be said to be.

Although we have reached the conclusion that the order made on the twentieth of May, by .which this motion ■ was denied, was not void, still it was undoubtedly erroneous. There can be no doubt that under the provisions of the Code of Criminal Procedure above cited,'no right is given to the district attorney to move to change the. place of trial of a criminal action. If the People have such right under any circumstances, which we do not here decide, that must be found elsewhere than within these sections of the Code of ■ Criminal Procedure. The court had jurisdiction undoubtedly to hear and decide this application made upon the motion of the defendant, but it was error to attempt to shorten the time within which the motion should be made. The Legislature have prescribed in this as in "many other matters the time within which proceedings at law shall be taken. Eor instance they have directed that at least eight days’ notice of an ordinary motion must be given unless the time is shortened by an order to show cause. They have . required at least fourteen or sixteen days’ notice of trial, and that costs should be taxed upon two days’ notice. All these requirements are binding upon the courts. Adherence to them is not absolutely necessary in every case to the existence of jurisdiction, because after the court has acquired jurisdiction it is not lost by an irregular proceeding; that is, by one which the court had power to take, but is only made irregular because it was taken too soon. But yet such adherence is necessary to correct action in the matters involved.,' -When the Legislature has directed the time within which an act must be done, it is improper to shorten that time except as a condition of granting a favor. Especially is this strict, adherence to the rules of procedure necessary in actions involving the administration of criminal law. A speedy determination of criminal actions is Undoubtedly of great importance; it is undoubtedly of great benefit' t,0 the community that punishment of crime should not only be certain, but quick. But it is of far more importance in the administration of the criminal law that the rules for gravé and orderly procedure which have been laid down by the statute, should be preserved, for it is the observance of these rules which makes the distinction between mob law and the dignified and decent procedure of the courts. The penalty for crime is inflicted quite as much for example as for punishment, and it can only be made to serve as an . example when it is understood that it is attained by a strict observance of those forms which years of experience have shown are necessary to the protection of the rights of those people against whom the criminal law is set in motion. So far as the punishment of crime is to operate as an example, it is open to grave doubts whether it does not entirely lose its xorce if a conviction is obtained at the expense of any of those safeguards with which the lawmakers have seen fit to protect those who are brought under the ban of criminal law. Such conviction has its greatest weight when it has been procured only by orderly proceeding with careful observance of the rights of the accused person.

In the case at bar we do not-think such rights were protected as they ought to have been upon this motion. The facts presented by the voluminous papers upon the application to change the place of trial, called for serious and careful consideration. Many of them undoubtedly were of great force and they might well have led the defendant to believe that it was doubtful whether an impartial jury coiild be procured to try his case witliin the county of Mew York. ■ Without attempting here to express any opinion as to the force of these facts, or whether the plaintiff was entitled to any relief upon them, it is sufficient to say that they were such as called upon the court to whom they were presented to carefully weigh and consider them, even if it did not call upon the People to answer or explain them. It is apparent from the papers that no such consideration was had. The court undertook to compel the defendant to bring on this motion at a. time sooner than was fixed in the notice, without any fact having been made to appear which would warrant the exer-' cise of that power, even if it existed. The only facts stated in the" affidavit of the district attorney were that a large number of jurors had been summoned to try the case, the hearing of which was set down for that day. Those facts might have been important as giving a reason why the stay should have been vacated as improvidently granted, or why the court, as a condition of retaining the . stay, should not compel the defendant to make his motion earlier than the day for which it was noticed.' But beyond that the court had no power to go in the premises.. It was for the defendant to say when the motion should be made, and if the .day. which he fixed was so far off that a delay of the trial to that time would have operated as an obstruction to the administration of justice; the court might have vacated the stay upon a proper motion for that purpose, or might have imposed an earlier hearing of the motion as a condition of allowing the stay to continue: But it could not properly fix any. other time for the hearing of the motion, and for the reason that it attempted to do that, and upon the ■ defendant’s refusal to proceed, denied the motion peremptorily, its action was erroneous and cannot stand.

The order denying the motion to change the place of trial should, , therefore, be reversed.

. The order, in addition to denying the motion to change the place of trial, vacates the stay which had been granted of the trial of the action in the Court of Oyer and Terminer. This would have been the effect of the order, even though nothing had been said about the stay, for when the proceeding had been brought to an end by the final order of the court the stay granted pending the proceeding necessarily fell of itself. But so much of the order as vacates the stay must also be reversed with the other order. The effect of , the final order, which is hero reviewed, was to put an end to the special proceeding to change the place of trial and to leave the matter in precisely the same situation as though no such proceeding had been begun.. When, therefore, the case was moved in the Court of Oyer and Terminer, it was the duty of the court to proceed in the "criminal action unless for some good reason shown there the trial should be postponed. The only objection made there was that the order here reviewed was void, which we have found was, not the case. No claim was made in that court that the defendant was not ready for trial, except for the reason that his counsel was absent, but that was provided for by the court. This action of the court, therefore, in proceeding with the trial was proper, if upon the trial an impartial jury was impannelled, as we have found upon the appeal from the judgment to have been the case. No. injustice was done to the defendant by the action of the court in the premises, because he had as a result of all the proceedings a trial before an impartial jury, and, therefore, he had no reason to complain.

We do not pass, of course, upon the merits of the defendant’s application to change the place of trial. This decision is put solely upon the ground that the action of the Special Term in compelling the defendant to proceed to a hearing of this action at a date earlier than that fixed in his notice was erroneous.

The order should be reversed, but, under the circumstances, without costs.

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

Order reversed, without costs.  