People ex rel. Williams v. Corey — 12 N.Y. St. Rep. 411

Majority

p. 411

The People ex rel. Caroline Williams, Resp’t, v. Anthony Corey, App’lt.

(Supreme Court, General Term, Third Department,

Filed December, 1887.)

Headnote

1. County judge—Jurisdiction—Code Crv. Pro., §§ 341, 3017. sued. 3.

A county judge possesses the power conferred by law in general language upon an officer authorized to perform the duties of a justice of the supreme court at chambers or out of court. Code Civ. Pro , § 341 ' Application for the writ of habeas corpus may, therefore, be made to him. Code Civ. Pro., § 3071, subd. 3. '

$. Same—Habeas corpus—Purposes for which the writ is granted— Code Civ. Pro . § 8015.

The writ thus authorized is for the purpose of inquiring into the cause of imprisonment or- restraint, and in a case prescribed bylaw of delivering therefrom the party restrained.

8. Same—Jurisdiction—Limits of—Code Civ. Pro., § 317.

The power thus conferred does not, however, include jurisdiction of the care, custody and control of infants. This is an equity power formerly exercised by the chancellor in his capacity of guardian of infants, and transferred to the supreme court. Const., art. 6, § 6; Code Civ. Pro., § 317. This power was exercised by the chancellor at chambers. By the judiciary act of 1847, chapter 380, section *16, the like power was conferred upon the justices of the supreme court. This section of the judiciary act was repealed by Laws 1877, chapter 417, subdivision 31, And justices of the supreme court cannot now exercise this jurisdiction at chambers. Held, that a county judge could not; and that an order made by a’countv judge taking an infant from its father and awarding its custody to the relator was in excess of his jurisdiction and void.

4. Same—Jurisdiction—Custody of infants.

Held, that the justices of the supreme court did not require the sanction of a statute to enable them to perform at chambers that of which the chancellor had jurisdiction at chambers, but that the county judge could only exercise the statutory powers of an officer authorized to perform the duties of a justice of the supreme court at chambers, and could not dispose of the custody of infants.

Lee S. Anibal, for app’lt; McKnight & Boyce, for resp’t.

A county judge possesses “ the power, conferred by law, in general language, upon an officer authorized to perform the duties of a justice of the supreme court at chambers, or out of court.” Code Civil Pro., § 241. Application for the writ of habeas corpus may, therefore, be made to him. Id., § 2017, subd. 3. But the writ thus authorized is for the purpose of inquiring into the cause of the imprisonment or restraint, and, in a cáse prescribed bylaw, of delivering him therefrom. Id., § 2015. The power thus conferred does not, however, include jurisdiction of the care, custody and control of infants. This is an .equity power. It was formerly exercised by the chancellor, in his capacity of guardian of infants. Wilcox v. Wilcox, 14 N. Y., 575 . It was transferred to the supreme court. Const., art. 6, § 6; Code Civil Pro., § 217.- The chancellor exercised this power at chambers. Wilcox v. Wilcox (supra). The judiciary act of 1847 (chap. 280, § 16; 4 Edm., 560), conferred the like power upon the justices of the supreme court, This section of the judiciary act was repealed (Laws 1877, chap. 417, subd. 21). Justices of the supreme court, at chambers, out of court, cannot now exercise the jurisdiction. Therefore, county judges cannot. The order of the county judge, taking this infant from the father, and awarding its custody to the relator, was in excess .of his jurisdiction and void. See People v. Osborne, 6 Civ. Pro. Rep., 299; People v. Ward, 59 How., 174 ; People v. Porter, 1 Duer, 709 ; People v. Humphreys, 24 Barb., 521 .

That there is a supreme court in chambers, with the same equity powers as were possessed by the chancellor in cases like this, we do not deny. The supreme court is “composed of the justices now in office * * * and.of their successsors.” Const., art. 6, § 6. The court thus composed, holds various terms of court, and, also, holds chambers.

The legislature may alter and regulate the jurisdiction and proceedings in law and equity (Canst., art. 6, § 8); but the power to alter and regulate does not embrace the power to take away. The justices sit in chambers, out of-court, and in that capacity perform many duties, because the statutes so provide. What a justice may do out of court depends upon the statute. No statute, however, is necessary to authorize the court to exercise its equity juris"diction, conferred by the Constitution, over the custody of infants in the same way that the chancellor did, namely, in court at chambers. We know of no statute which so alters or regulates this jurisdiction, or proceedings under it, as to forbid their exercise, in court, at chambers. But the county judge can only exercise the statutory power of an officer

p. 413

authorized to perform the duties of a justice of the supreme court at chambers or out of court. He cannot hold supreme court in chambers, and hence cannot dispose of the custody of infants.

Order reversed and proceeding dismissed, with costs.

Fish and Parker, JJ., concur.