Willard, J.,
delivered the opinion of- the court:---
The defendants move to set aside, for irregularity, a judgment record, filed on the 2d of February, 1848; and also to vacate an order made by Judge Edmonds, on the 2d of February last, rescinding an order made by him, on the 31st of January last, staying the relator’s proceedings. The irregularity in relation to the judgment is alleged to be that it was filed on the 2d of February, before Judge Edmonds had vacated his order staying proceedings; and also that it is not made up in conformity to the decisions of the court.
From the papers used on the motion, it appears that at the last September Special Term of this court, held in this city, before Justice Edmonds, an alternative mandamus was issued to the defendants, trustees of the Centenary Methodist Episcopal Church in the city of Brooklyn, commanding them to admit the relator to the use of the pulpit and altar in said meeting-house, as minister, preacher, and pastor, or make it known to the said Supreme Court, on the 20th of September, 1847, why they had not done so. That, on the 17th of December last, the defendants made a return to the said alternative mandamus as awarded, which the said Supreme Court, at a Special Term, in January last, after hearing the respective parties, adjudged insufficient, and awarded a peremptory mandamus to the defendants. A record reciting these proceedings according to the facts, as it is contended by the relator, was made up, signed by the clerk, and filed on the 2d of February. And the peremptory mandamus was issued, and served the same day. The defendants also move to set aside that writ, as irregularly issued. For this purpose, it is shown that on the 31st of January last, immediately on the decision of the cause, Judge Edmonds, upon the application of the defendants, made an ex pañete chamber order, staying proceedings, on the part of the relator, to enable him to apply to this court for an order requiring the relator to make up a record, or, in default thereof, to permit the defendants to make it up. This order was vacated ex parte by Judge Edmonds, on the 2d of February, on the relator having made up and filed his record. And notice of such vacation, and of the filing of the record, and that a peremptory mandamus was issued, was served on the defendants’ attorney the same day. The order itself, or a copy, was not served, and this is alleged as an irregularity. It is alleged, also, that. the peremptory writ was served upon the defendants before notice of the order vacating the order to stay proceedings was served.
On the 3d of February the defendants sued out a writ of error to the Court of Appeals, and put in bail for the prosecution thereof, and filed the same, with the requisite certificate of counsel, on the same day, with the clerk, and gave notice thereof to the attorney of the relator.
A motion was afterward made, at a Special Term, to compel the relator to make up, or permit the defendants to make up, and file a different record; and Judge Edmonds, on the 7th of March, 1848, made an order, at Special Term, that the relator should make up a record containing the amended return, demurrer, and joinder, and judgment, or, in default thereof, the defendants should be permitted to make one up in that form. The relator having failed to make up such record, the defendants made one up, and filed it; and the object of the second motion is, to set aside such last mentioned record.
A variety of other matters are detailed in the affidavits, but are not deemed material to a decision of this motion.
The Constitution (art. vi, § 6) provides that any justice may hold a Special Term, and any three, of whom a presiding justice shall be one, may hold the General Term. The Constitution does not prescribe the power to be exercised by a Special Term. This has been left for legislation. The judiciary act of 1847, section twenty, under which these proceedings were had, seems to contemplate that nothing on the law side of this court should be transacted at a Special Term but non-enumerated business—a class of business well understood at the adoption of the Constitution. The jurisdiction of the Special Term, under the present Constitution, is less than that possessed by a Special Term under the Constitution of 1821; since, by that Constitution, any one of the justices of the Supreme Court could hold the said court. It may be doubted whether an issue at law, arising on demurrer, can be heard at a Special Term.
Most of the questions raised on these motions, are questions of regularity, which belong to a Special Term. The motion to set aside the writ of peremptory mandamus for irregularity is clearly of that character, so also is the motion to set aside the record filed by the relator.
The motion on the part of the relator to set aside the record made up and filed by the defendants, in pursuance of an order at the Special Term, is in the nature of an appeal from the Special to the General Term. Before the adoption of the Code of Procedure, no mode was pointed out for conducting such appeal on the law side of the court. The twentieth section of the judiciary act gave a rehearing in matters of equity, but was silent as to other proceedings. The right, however, to bring up for re-examination before a General Term, decisions made at a Special Term, no doubt existed, although it was not regulated by the judiciary act. It cannot be presumed that the decision of a justice holding a Special Term was final, and beyond the reach of review, because the means for reviewing it were not pointed out. Error will not lie, it has been held, from the Special Term to the Court of Appeals. The policy of the Constitution cannot be carried out, without occasionally bringing before the General Term, for re-examination, proceedings which have been passed upon at a Special Term. This, I think, might be done before the adoption of the Code; but it would be the duty of this court to restrict such re-examination to cases of magnitude and importance.
The ninth section of chapter two of the supplement to the Code is now in force. It is retrospective as well as prospective. It allows a party aggrieved, by an order made at a Special Term, in an action at law, or in a special proceeding, when it involves the merits of the action or special proceeding, or some part thereof, to appeal therefrom to the court, at a General Term. No such appeal can be taken, unless a justice of this court certifies, in pursuance of the tenth section, that, in his opinion, it is proper that the questions arising on that appeal should be decided at a General Term. The court, at a General Term, may, on such appeal, reverse, affirm, or modify, the order appealed from. The statute does not fix any limit in which the appeal may be made, nor does it require bail from the appellant; nor does it direct a stay of proceedings pending the appeal. The statute is intended as a temporary act.
I think the order of Judge Edmonds was erroneous in requiring a record to be made up as if the decision had been made by this court. That record should be vacated, but without prejudice to the right of the defendants to appeal to this court from the order of the Special Term, granting a mandamus. The other record will not impede the rights of the defendants to appeal.
I should incline to allow the defendants, in abandoning their writ of error, to appeal to this court. It is understood that no writ of error lies to the Court of Appeals from the Special Term.
The record of a judgment made up by the defendants must, therefore, be taken off the files as irregular. As to that made up by the relator, it is of no consequence, whether it remains on the files or not, for no writ of error will lie upon it. But under sections nine and ten of chapter two of the supplement to the Code, the defendants may have a rehearing of the main question decided at the Special Term, and it is only thus, through such, rehearing, that the question can be carried to the Court.of Appeals.
In the mean time, as the Special Term has power to issue a peremptory mandamus, as the statute (2 R. S. 587, § 57) directs that it shall issue without delay; and as.there is no power, when the court have awarded it, to stay proceedings upon it, all the orders to that effect must be vacated, and the writ be obeyed.
The court then made an order, directing that the order at the Special Term, permitting the defendants to make up a record, as upon a demurrer, be vacated, and that the record by them made, on the 16th of March last, be taken from the files of the court; and that the defendants’ application to set aside the relator’s record be denied; and, directing further, that all orders made upon the application of the defendants, staying proceedings on the peremptory writ of mandamus, be set aside, and declared null and void; and, directing further, that the defendants’ application to set aside the peremptory writ of mandamus be denied, and that said writ be by them forthwith, and without delay, obeyed.
Upon the entry of this order, the defendants gave notice of their purpose to- submit to it, and, in obedience to the commands of the writ of mandamus, delivered up the possession of the pulpit and altar of the meeting-house, and stipulated with the attorney of Mr. Griffen, to deliver the possession of the parsonage, on demand, either to him or any other minister of the New York Conference, who should at their next meeting be appointed to, the Centenary Methodist Episcopal Church.