In re Walker — 9 N.Y. Super. Ct. 655

Majority

p. 655

In the matter of Walker, an imprisoned debtor.

Headnote

A petition for the discharge of a debtor, imprisoned under an execution, cannot be heard by a judge at chambers. It must be presented to the court at a regular special term.

p. 656

(Before Oakley, Ch. J., Duer and Campbell, J.J.)

At a General Term for hearing appeals from orders, July 29, 1853.

It cannot be heard, in the first instance, at a general term: the court at general term exercising only an appellate jurisdiction, with the exception of the cases specified in § 265 of the Code.

--, for petitioner.

C. P. Kirkland, for the creditors.

This was a petition by a debtor, to be discharged from his imprisonment, under the provisions of art. vi., tit. 1, chap. 5, of the 2d part of the Revised Statutes. The petition had been presented to the chief justice at chambers, who had refused to entertain it.

The judges were all of opinion, that the judge at chambers had no jurisdiction, and that the words of the statute, and especially of §§ 6 and 9 (2 R. S. 2d ed. p. 690), could only be satisfied by holding, that the application must be made to the court at a regular term. They were also of opinion, and so decided, that the petition must, in the first instance, be presented at a regalar special term, it being the plain intention of' the Code that the court, at general term, should exercise only an appellate jurisdiction, and this being also the construction which the court had uniformly given to its own rules (Rules of 1853, rule 2). The only exceptions were those created by § 265 of the Code, as last amended.