#### The People of the State of New York, App’lt, *v.*Eugene Sullivan, Resp’t.1

*(Court of Appeals,*

*Filed June 28, 1889.)*

1. Criminal law—When adjournment does not work dissolution ok COURT.

The defendant was indicted for wilfully discharging a loaded firearm, at a railway train The trial of the indictment came on regularly on March 12, lb88. At the end of the day, the court adjourned until ten o'clock next morning, March 13. On the adjourned day, no court was held on account of the snow blockade, the result of the "blizzard” of 1888. On the next day (March 14) the court convened, and the trial proceeded, without objection, to its close. The jury returned a verdict of guilty, and defendant’s counsel moved to set aside the verdict, also in arrest of judgment, upon the ground that no legal court was held on March 14, claiming that the court on March 12 having been adjourned to meet on the morning of March 13, and not meeting on that day it was dissolved, and had no right to meet on any day thereafter, and, therefore, all the proceedings had were void for want of jurisdiction. *Held,*that inasmuch as there was no pretense of any harm having been done, and defendant has not claimed that he suffered in any way on account of the continuing of the trial on March 14, the failure of the judges to appear on the day to which the court had been adjourned, not being an adjourned term, did not, under the circumstances, work a dissolution of the court.

2. Same—Courts—Power to adjourn proceedings.

There is an inherent power in a court to adjourn its proceedings from day to day as long as it is necessary to finish the business legitimately brought before it, unless by the terms of some statute its existence is sooner brought to a close.

3. Same—Adjourned term—When court cannot convene.

Where a term is appointed to be held under the authority of a statute, an adjourned term of the court at which cases may be noticed and jurors *580summoned as if to a new and regular term, is of the same nature. In such a case the failure of any judge ;o appear upon the appointed day' may well be regarded as preventing the convening of a legal court; and where no legal court convenes and commences its term on the day appointed by law, there is no power, in the absence of a statute, in the couit, to convene the next day—in such case there would be no court to convene.

Appeal from a judgment of the supreme court, third' department, reversing a judgment of conviction and sentence of the Montgomery county court of sessions.

*H. L. Huston,*for app’lt; *Ed. J. Maxwell,*for resp’t.

1

 Reversing 17 N. Y. State Rep., 669.

Peckham, J.

The defendant was duly indicted by the grand jury of the county of Montgomery, for having, on the 7th of October, 1887, willfully discharged a loaded firearm at a railway train upon the track of the New York Central and Hudson River Railroad Company, and at a car which was part of, and attached to, such train, and thereby endangered the safety of "the passengers in said car. He pleaded not guilty, and the trial of the indictment came on regularly at a court of sessions held for the county of Montgomery at Fonda, on the 12th of March, 1888. A jury was at that time, empanelled, and several witnesses were sworn. At the end of the day, the court adjourned until 10 o’clock the next morning, March thirteenth. On the adjourned day no court was held on account, as the record states, of the snow blockade. It was the day of the great *“*blizzard ” of 1888. On the next day, the court convened, and the defendant and his couhsel were present, and the trial proceeded, without objection, until its close, when the jury retired, and on returning into court, rendered a verdict of guilty of the crime as charged in the indictment. The district attorney moved for sentence, and thereupon the defendant’s counsel moved that the verdict be set aside, and a new trial granted, and also moved, in arrest of judgment, upon the ground that there was no legal court of sessions held on the 14th day of March, 1888, that being the day upon which the verdict of the jury was rendered. The ■ ground for such statement rested upon the fact that the court, on the twelfth of March, having been adjourned to meet again on the morning of the thirteenth, did not meet on that day, and therefore it was dissolved, and had no right to meet on the day thereafter, and that all proceedings before such court were *coram non judice,*and void for want of jurisdiction. The motions were overruled, and the defendant sentenced to imprisonment in the state prison. Hpon appeal to the general term, that court reversed the judgment, and held that the motion in arrest of judgment was well taken, for the reasons therein stated, and that the failure of the defendant to object to the proceedings at the trial, could not constitute a court, or confer any jurisdiction upon the judges to continue the trial. From the judgment of reversal, the people have appealed to this court.

*581The question in this case is of the most technical nature. No harm is claimed to have come from the action of the court in proceeding with its business on the 14th instead of the 13th of March. It is not claimed that the prisoner’s rights were in any way jeopardized, or that he lost the benefit of any evidence which he would otherwise have had. Nothing but the clear and simple allegation of a loss of jurisdiction exists.

The term was legally commenced on the 12th of March, and the tidal proceeded during that day. . At its end it became necessary to suspend the proceedings in order that all those participating in the trial might obtain requisite rest and refreshment. There was no thought of putting an end to the term. An adjournment was held until the next day. An adjournment of such a nature is simply a suspension of the proceedings then taking place, for the purpose of continuing them at a stated time thereafter. At the particular time stated the judges did not appear because of one of the most extraordinary snow storms known in this portion of the country in modern times, which rendered it impossible for them to reach the court house. At the earliest opportunity thereafter, which was on the very next following day, they did appear, as did the defendant and his counsel and witnesses, and the trial proceeded without objection from either side. Nothing but the most rigorous rule of law should, under the circumstances, compel a court to admit its loss of jurisdiction and the consequent failure of all proceedings taken before it.

If, from the positive commands of any statute, or the decision of some court which is binding upon us, we are compelled to so decide, nothing more need be said. We do not think there is such a statute or decision. The term of the court having been regularly opened, its continued existence thereafter would, by the common law, be regarded as but one day. All the business done at a term of court was, by that law, referred to its commencement, unless the law directed certain acts to be done on certain other days. There is an inherent power in a court to adjourn its proceedings from day to day, as long as it is necessary, to finish the business legitimately brought before it, unless, by the terms of some statute, its existence is sooner brought to a close.

The argument for the defendant brought to its strict logical result, would prevent the further continuance of a court which did not meet until ten o’clock of the next day, when it had adjourned until the preceding hour of nine. It would seem as if there were no time within which a judge might appear subsequent to the hour and minute to which an adjournment had been had, if the argument of *582the defendant were earned to its extreme length. The failure of a judge to appear upon the day appointed for the commencement of a term of court, is a totally different matter. The term is appointed to be held under the authority of a statute, and an adjourned term of the court, at which cases may be noticed and jurors summoned as if to a new and regular term, is of the same nature. In such a case, in the absence of any statute, the failure of any judge to appear upon the appointed day may well be regarded as preventing the convening of a legal court, and as no legal court convened and commenced its term on the day appointed by law, there would of course be no power, in the absence of a statute, in the court, to convene the next day any more than the next month or the next year ; in such case, there would be no court to convene; but the term having been opened, and commenced its session according to law, we are not prepared to hold, under the circumstances of this case, that jurisdiction was lost by the failure of the court to appear on the thirteenth of March, and that consequently all its acts on the fourteenth and subsequent days were absolutely void." The court was once legally in existence and there was no adjournment *sine die,*and no intention to put an end to the term.

Section 34; Code of Civil Procedure, provides that a “general, special or trial term of a court of record may be adjourned from day to day, or to a specified future day, by an entry in the minutes.” We do not think that the power of a court in regard to adjournments is limited to that which, is derived from that section. It may of course, be adjourned from day to day, or to a specified future day, but we do not think that a failure to appear on the day to which the court was adjourned, not being an adjourned term, would, under the circumstances of this case, work a disssolution of the court. It is stated that “every term continues until the call of the next succeeding term, unless previously adjourned *sine die*(Freeman on Judgments, § 90), and until that time, a judgment may be modified or stricken out.”

The case of *The People*v. *Bradwell*(2 Cow., 445), does not control. The necessary judges to constitute a court of oyer and terminer did not appear on the first day of the term, and that court was not opened on that or the succeeding day, but it was opened in form on the next day thereafter. It was held that the court of oyer and terminer failed to exist, by reason of the failure of the judges to attend. That case comes under the principle already stated in regard to the failure to attend upon the first day of the term of court.

In the *People*v. *Clevs*(4 Abb. N. C., 256, at 264), no *583judge appeared, and an attempt was made to adjourn the court of oyer and terminer by virtue of a letter written by a justice of the supreme court, directed to the sheriff and the clerk of the county where the court was appointed to be held, in which letter he directed the court to be adjourned from January 7 to January 14, 1878, and directed that the order should be entered in the minutes of the court. It was held simply that a justice of the supreme court could not adjourn a court, appointed to be held on a certain day, by sending a letter ordering such adjournment, and not attending such court himself.

In the case of *Northrup*v. *People*(37 N. Y., 203), it was held, that “where the statute made it the duty of the justices of the supreme court of each district to appoint times and places to hold courts of oyer and terminer within their respective districts, and where they had made such appointments, a judge had no authority to adjourn such court to be held at any other place within such district.” The court was held at a place provided for by statute, and it is entirely plain that no court would have the right to adjourn such court to some other place than the one so provided.

These cases, we think, do not touch the question. If the court in this case lost jurisdiction, at what particular time did it lose it ? It adjourned on the twelfth until the thirteenth of March at ten o’clock. If the court had appeared at twelve o’clock noon, would it have been in time ? If so, would it have been in time if it convened at fifty-five minutes past eleven o’clock that night! Or, is the hour of twelve, at midnight, the particular moment of time subsequent to which the court could not convene *\*Questions of this kind may be debated *ad infinitum,*and much learning may be displayed and much ingenuity of argument exercised in claiming that the judge must appear at the appointed day and hour, or he cannot appear as judge at all.

Is there any real force in assuming that a judge might appear at any time of the day to which court was adjourned, up to *12*o’clock at night, but could not appear and take his seat in a legal court one minute after *12*o’clock ? All matters of this kind must- stand upon some reasonable foundation, and we think that, under the facts developed in this case, there was not such total loss of jurisdiction in the judges who appeared on the fourteenth of March, that they could do no judicial act and continue no trial, even with the consent of the person affected by their proceedings. We, of course, assent to the proposition, generally true, that consent cannot confer jurisdiction of the subject matter, nor can mere consent make a legal court out of one which but for the consent would be wholly without jurisdiction to proceed. But in such a case as this, we think the court was not without jurisdiction. The act of God, in the shape of *584this unprecedented snowstorm, prevented the entrance to the court house during the day of the thirteenth of March; but on the fourteenth, the very earliest time at which approach to. the place, at which the court was held, could be made, the judges and all the parties in the case, jurors, witnesses, officers, etc., came together and continued the trial of the case which had been adjourned the preceding Monday. As I have said, there is no pretense of any harm having been done, and the defendant has not claimed that he suffered in anyway in mind, body, or estate, on account of the continuing of the trial on the fourteenth. If such had been the fact, and the court had, notwitstanding, continued the trial, and it had been made to appear that by reason of this continuance' some possible prejudice might have enured to the defendant, it may very well be that it would have been ground for setting aside the verdict, and, if refused in the trial court, for an appeal to another court where the defendant would have had his rights guaranteed to him. We can not think that any- rule of law compels us to set aside this verdict, and no suggestion of injustice to the defendant appears in the record, or is claimed to exist by reason of this continuance.

We think the judgment of the general term should be reversed, and that of the court of sessions of the county of Montgomery, affirmed.

All concur.