Banko v. Weber

Order reversed, without costs, and matter remitted to the Special Term for further proceedings. Memorandum: In our opinion, the order to show cause was properly granted by the Justice acting out of court. We find no provision in any statute of this State forbidding a Justice of the Supreme Court to grant an order of this character out of court ón Sunday. The common law on this question was uncertain (cf. Lord Mansfield’s opinion in Swann v. Broome, 3 Burr. 3595, affd. in the House of Lords, 6 Bro. P. C. 132; Holmested, Sunday Laws of Canada, pp. 41-42, 64; Annual Practice [England, 1955], p. 1368) but if there ever was any common-law rule applicable to such an order, it was superseded by the statutes of this State, comprehensively dealing with the subject. (Black, Interpretation of Laws [2d ed.], § 112, p. 365; 11 Am. Jur., Common Law, § 15, p. 169; 50 Am. Jur., Statutes, § 345, p. 338; cf. People ex rel. Price v. Warden, 73 App. Div. 174, 177.) See, in particular, section 5 of the Judiciary Law, derived from section 6 of the Code of Civil Procedure, which was in turn derived from 2 Revised Statutes (1829), page 275, section 7. See, also, section 65 of the Civil Practice Act: — ‘‘ Each justice, at all reasonable times, when not engaged in holding court, must transact such judicial business as may be done out of court.” All concur, except Williams, J., who dissents and votes for affirmance. (Appeal from an order of Erie Special Term dismissing the proceeding on the ground of lack of jurisdiction.) Present — MeCurn, P. J., Kimball, Williams, Goldman and Halpern, JJ. (Order entered October 27, 1959.)