Hart v. Butterfield — 3 Hill & Den. 455

Majority

p. 455

Hart vs. Butterfield and others.

Headnote

A judge at chambers has no power as to the costs of proceedings before him, except in cases specially provided for by stature.

Accordingly, a circuit judge having ordered that a defendant be discharged from arrest on filing common bail, and that the plaintiff pay the costs of the motion; held, irregular.

Where a defendant may be held to bail without an order for that purpose, it is competent for him to apply to a judge at chambers or a commissioner to mitigate the bail or be discharged on filing common bail.

If a defendant be held to bail pursuant to a judge's order, no other judge or officer out of court can vacate or modify the order; the defendant should apply either to the same officer or directly to the court for that purpose.

In general, however, whore an order has been made by a judge at chambers or a c immissioncr, the proper course is to apply first to him to vacate it, and his decision upon the application may be brought before the court on motion in the nature of an appeal. Per Bnoxsox, J.

One judge or commissioner has no power to set aside an order made by another

Action for libel, in which the defendants were arrested and held to bail in the sum of $2500, by virtue óf an order of the recorder of the city of New-York endorsed upon the capias. The defendant Butterfield thereupon applied to the circuit judge and obtained an order that the plaintiff show cause before the judge at chambers why the defendant should not be discharged on filing common bail. On the appointed day for showing causé the judge made an order that Butterfield be discharged on filing common bail, and that the plaintiff pay $10, as costs of the motion.

J. C. Hart, for the plaintiff,

now moved to vacate the order of the circuit judge, on the grounds, among others, that he had no authority either to make an order discharging from bail, or to allow costs.

T. Warner, for the defendant Butterfield, opposed the motion.

A judge at chambers cannot allow costs except where the case has been specially provided for by statute, and no such provision has been made in refer ence to a proceeding of this kind. Probably the attention of the judge was not called to the question of costs at the time the order was drawn up.

In cases where the defendant may be held to bail without a judge’s order, he may apply to a judge at chambers or a commissioner for an order that the plaintiff show cause of action, and, after hearing the parties, the judge may make an order either mitigating bail, or discharging the defendant on his filing common bail. But I am not aware of any such practice where the defendant has been held to bail in pursuance of a judge’s order. The remedy in that case, if the defendant has any grounds for complaint, is an application to the court to set aside or modify the order to hold to bail. Such was the course taken in Classon v. Gould, (2 Caines, 47,) Fan Vechten v. Hopkins, (2 John. R. 293,) and Norton v. Barnum, (20 John. R. 337.) In general, when an order has been made by a judge at chambers or a commissioner, the proper course is to apply to the same officer to vacate his order, and his decision upon the application may be brought before the court on motion in the nature of an appeal. In the case of an order to hold to bail, however, the defendant, as will be seen from the cases already cited, may apply to the court in the first instance, and without asking the officer to vacate the order. But when an order has been made by one judge or commissioner, no other judge or commissioner can set it aside. That can only be done by the court, or by the officer who made the order. A different rule would lead to endless controversy. Two officers might alternately revoke each other’s orders ad, infinitum. The order to hold to bail could only be set aside or modified by the recorder who made it, or on application to the court.

Motion granted.