SUPREME COURT.

#### The People *ex rel.*Edward Cooper, mayor of New York, agt. The Special Term at Chambers for New York County, Hon. Theodoric R. Westbrook, justice, presiding thereat, and Sidney P. Nichols, the relator in proceedings pending in said special term, at chambers, against the relator herein.

*OerUoran'i, how and where issued—is not a writ of right, but one of discretion*— *Where returnable—where heard—Notice of hearing required*on— *cannot be heard as a non-enumerated motion—Hules of court hare the force of statutes—Distinction between special terms at chambers and special terms*proper— *Only non-enumerated motions can be heard at the*former— *Section*780 *of Oode does not relate to enumerated motions*— *chapter*10 of *the Oode*relates_ *only to issues presented by the pleadings—In certiorari proceedings there are no pleadings eo nomine—they are special proceedings*— *Practice.*

The common law writ of *certiorari*is not a writ of right but rests in the sound discretion of the court.

Application for it must be made to the court and not to the judge.

It mu'st be made returnable at the general term of the district in which the proceedings to be reviewed are had.

After the return, and when the proceedings are in a condition to be heard, *468a hearing, by Rule 44, may be secured by either party, at special term, except in cases which by law are required to be heard at general term.

Such cases may be put on the preferred calendar, at special term, upon filing note of issue.

' The rules established by the conventions of the judges, have the force and effect of statutes and cannot be properly departed from ; they are binding upon all courts except the court of appeals and courts for the trial of impeachments.

In a proceeding by *certiorari,*the respondent is entitled to the usual notice of argument, not notice of argument of a motion, but the usual notice of argument (founded upon a note of issue to be filed) that the cause will be brought to a hearing.

The Code confers no authority to shorten the time required for notice of argument. Section 780 of the Code has no application to proceedings upon *certiorari*in enumerated motions.

If the proceedings at special term up to the order to show cause why the relator should not have judgment upon the return, had been regular the respondent had a right to the usual notice of hearing and he could not be deprived of that right.

The order to show cause having been made returnable in less than the required time for notice of argument.was unauthorized and the exercise of any power under it should be prohibited.

In the first department there is a distinction between *special terms at chambers*and special terms *proper.*The former has jurisdiction in respect to non-enumerated motions and chamber business, and not for the trial of issues of law or of fact, nor has it any appellate jurisdiction.

Hearing upon return to *certiorari*is an enumerated motion. Special terms at chambers have no jurisdiction to hear such.

The *issues*treated of, by chapter 10 of the Code, are those only which are *presented by the pleadings*in civil actions. Proceedings by *certiorari*are *special*and have no pleadings *eo nomine.*Section 964 of the Code ■ does not apply to such.

*First Department, Extraordinary General Term, September,*1879.

*Before*Davis, *P. J.,*Beady and Babbett, *JJ.*

September 19, 1879, on motion of the relator, the supreme court, extraordinary general term, granted an order that the respondents show cause, September 25, 1879, why a writ of prohibition should not be issued, prohibiting the special term *469at chambers for the county of Hew York, and judge West-brook, or any justice presiding thereat, from hearing and determining the questions arising' upon a writ of *certiorari,*issued upon the relation of Sidney P. Hiehols against Edward Cooper, mayor of Hew York, and from reviewing, affirming or reversing the proceedings of said Edward Cooper, mayor, mentioned in said writ of *certiorate,*and from rendering any judgment thereon; and prohibiting said Sidney P. Hiehols from applying to said special term for any hearing or judgment on said writ of *certiorari*and the return thereto *(See case, The People ex rel. Nichols*agt. *Fchward Cooper, Mayor, ante,p.*463).

•It appeared, on the application for the foregoing order, that, tinder the compulsion of the writ of *certiorari,*and of certain orders issued at special term, subsequent to the issuance of the writ, the mayor, on September 15,1879, made return thereto. That afterward, the special term, at chambers, September 16, 1879, made an order requiring the mayor to show cause, before said term, on the 22d day of September, 1879, why the proceedings of the mayor against Hiehols, removing him from office, should not be reversed, and declared null and void.

The order came on to be heard on the return day.

*F. N. Bangs,*for relator.

*W. A. Butler*and *John D. Townsend,*for respondent Hiehols.

*T. C. Cronin,*for respondent, Hr. Justice Westbrook.

Brady, *J*.

Having been assigned by my associates of the general term to the performance of that duty, I have, in the following opinion, expressed as concisely as possible the result of our examination of, and consultation upon, the questions which we deem involved in this matter.

*470The relator applies for a writ prohibiting the special term at chambers, held in this district, and any justice presiding thereat, from proceeding to any determination, trial or judgment in the controversy arising between Sidney P. Nichols and the relator, arising upon a *certiorari*issued upon the application of Mr. Nichols, and made returnable at said special term; and, though the arguments of counsel covered an extensive field, the only questions to be considered are those which appertain to the propriety of granting the writ applied for.

It appears, from the papers submitted, that Mr. Nichols, feeling himself aggrieved by the official action of the relator, applied for and obtained a common-law writ of *certiorari,*the object of which was to secure a review of such official action and a judicial determination of its propriety and justice.

The *certiorari*was made returnable at a special term to be held on the first Monday of September, at chambers in this district, and certain proceedings were thereupon had in relation thereto, including, among others, the filing of a return by the relator (the mayor), which was done on the fifteenth of September, instant.

As already intimated, it is not the intention of this court, at this time, to express any views in regard to that *certiorari,*or the proceedings thereunder, t except so far as may be necessary for the determination of the application for the writ of prohibition.

The common-law writ of certiorari, for which application must be made to the court, and not to a judge at chambers (1 *Crary Spl. Pr.,*159), is not a writ of right, but rests in the sound discretion of the court to which application for it may be made; and when granted, it seems, must regularly be made returnable at the general term, and at the general term of the district in which the proceedings sought to be reviewed are had (5 *Wait's Pr.,*472, *and authorities cited).*When the return is filed, and the proceedings are in a condition to be heard, a hearing, by an existing rule of this court *(Rule*
      *47144), may be secured by either party at the special term, except in cases in which they are by law required to be heard at the general term, and in cases of *certiorari*to courts of sessions and oyer and terminer in criminal cases. And the proceedings may be placed on the preferred calendar of the special term upon filing a proper note of issue.

Originally, the hearing was at the general term, and this continued to be the rule until the adoption of new rules by the judges in convention, at the capítol in the city of Albany, on the 24th of November, 1874, and which were to commence and take effect on the 1st of February, 1875. Rule 53, then adopted, is precisely the same as the present rule No. 44, to which reference has been madej and which was readopted in 1877.

The rule of the supreme court on the subject existing in 1847, provided only for the hearing at special term of cases of *certiorari*to remove interlocutory proceedings of subordinate courts, and which was to be brought on upon the usual notice of argument, or if placed upon the calendar of the general term, was entitled to a preference on the morning of any day during the first week of the term. This rule was again adopted in convention in 1849. It was continued in 1854. It was changed, however, in the convention of the judges, in Albany in August, 1858, and the old rule established. Rule 47 of the then declared rules is as follows :

> “Every case of *certiorari*to subordinate courts, tribunals or magistrates, may be brought to a hearing by either party upon the usual notice of argument, and shall be entitled to preference on the morning of any day during the first week of the term.”

The parties were, therefore, deprived, by this rule, of the right to a hearing at special term, whether the ease related to interlocutory proceedings or not, as we learn from its positive terms. This rule was reiterated in a convention of the judges held at the capítol in Albany, in December, 1870, but provision was made by it that the cause should be placed on the *472preferred calendar on filing a proper note of issue. The judges, however, in 1814, as already' suggested, changed the rule and adopted the practice established by Rule 53, to which reference has already been made, and it allowed either party a hearing upon the usual notice at special term, except in the cases already mentioned.

It is quite clear, from this history of the rule applicable to cases arising upon *certiorari,*that until the adoption of Rule .53, already mentioned, there was no provision made for any hearing at special term, except where the *certiorari*related to the removal of interlocutory proceedings of subordinate courts, tribunals or magistrates; a right of which subsequent rules deprived them.

It must be borne in mind, in regard to the rules established by the conventions of the judges, that they have the force and effect of statutes and cannot be properly departed from. Section II of the Code of Civil Procedure, requiring the judges to meet, declares that the convention must establish rules of practice which shall be binding upon all courts of record, except the courts for the trial of impeachments and the court of appeals.

The respondent, in a proceeding by *certiorari,*is, therefore, under the statute, entitled to the usual notice of argument; not notice of the argument of a motion, but the usual notice of argument (founded upon a note of issue to be filed) that the cause will be brought to a hearing, which is to be had upon the return, and is designed to be a deliberate consideration of all the questions properly presented by it. The Code confers no authority to shorten this time. The provisions of section ISO relating to a notice of motion, in an action where the court, or a judge thereof, upon an affidavit showing ground therefor, may make an order to show cause, returnable in less than eight days, have no application whatever to proceedings upon *certiorari.*

Assuming, therefore, ^that all the proceedings before the special term were regular, down to the time when the order *473to show cause why Mr. Nichols should not have judgment upon the return was granted, it is quite clear that the respondent in that proceeding (the relator here) was entitled to the usual notice of any hearing that should be had at a special term in the *certiorari*proceedings. It was a right secured by a rule of this court, adopted in convention under a statute authorizing it, and possessing, therefore, all the force and vigor of a statute on the subject. It was a right of which, without legislation or a change in the rule by a convention of the judges, he could not be deprived.

The order to show cause, therefore, issued on the sixteenth September instant, the day after the return was filed, having been made returnable in less than the usual time for notice of argument, was unauthorized and the exercise of any power under it should be prohibited.

This view is based upon the assumption that the special term at chambers, held on the first Monday of September and still continuing, is a special term such as is contemplated by Rule 44? But it is not. In this district, under the statute authorizing the appointment of terms to be held, there is a distinction between special terms at chambers and special terms proper. In the former the jurisdiction to be exercised relates to non-enumerated motions and chambers business, and not to the trial of issues of law or of fact, nor to the exercise of any appellate jurisdiction. This distinction is rendered necessary by the enormous amount of chambers and non-enumerated business, which the court is called upon to transact, as well as the large number of issues which are presented for consideration at the special terms. In effect there is no difference in the application of this rule to this city and to the other districts, because in the other districts the special term and chambers are held together, and all the business pertaining to either is there transacted.

The hearing to be had upon a return to a *certiorari*is an enumerated motion, a result evidenced by the original practice of requiring the writ to be returned to the general *474term, and the proceedings in reference to it to be had before that tribunal, and by the continuing practice, as already suggested, of requiring the writ to be returnable there, although the hearing may, in the manner directed, be had at special term.

The result of an examination of this branch of the motion is, therefore, that the special term at chambers for non-enumerated motions, has no authority to entertain the hearing provided for in proceeding upon a common law certiorari, without consent, and consequently none to compel it by an order to show cause. It, therefore, appears that even if the usual notice of argument had been given, the special term at chambers was not the • proper tribunal in which a hearing could have lawfully been held.

It was urged on the argument, that. the *cerüora/ri*and return to it, presented no issue of law, because an issue of law, under section 964 of the Code, arises only upon a demurrer. But the learned counsel seems to have overlooked the declaration contained in section 963, that the issues treated of by the chapter of which section 964 is a part, are only those which are presented by the pleadings in civil actions, and that the proceedings by *cerüora/ri*are special, and are not marked or distinguished by any pleadings *eo nomine.*Therefore, section 964 does not apply to the subject-matter, and can have no controlling influence in the consideration of the questions treated of in this opinion.

It is questionable whether the practice established by the rule, allowing a hearing upon a common-law *cerUpra/ri*at special term, is a wise one; because the effect of it is to constitute a single judge a ^im-appellate tribunal, to consider a final determination, it may be of a number of persons authorized to act officially and conjointly, in the exercise of power affecting the rights or property of the citizen, or the public welfare. And this view seems to have impressed itself upon the special committee of the senate on the revision of statutes, who, in their report to the senate, section 2138, pro*475vide that cases arising upon *certiorari*must he heard at the general term of the court held within the judicial department embracing the county where the writ was returnable:

Having arrived at these conclusions, the question remaining is, whether an attempt was made to exercise jurisdiction in conflict with the doctrines hereby enunciated; and the answer is, that there was such an attempt made. The order to show cause, granted on the 16th day of September, 1879, in the *certiorari*proceedings, requiring the respondent to show cause, at a special term, to be held in the court-house, in the city of New York, on the twenty-second of September, or as soon thereafter as counsel could be heard, why the relator should n.ot have judgment on the return, vacating and declaring null the judgment of the respondent, removing Mr. Nichols, the relator, from his position as commissioner of police of the city of New York, and why he should not have such further relief as might be proper in the premises, was in -contravention of the views herein expressed.

The special term named not being a tribunal having the power to take cognizance of such a proceeding with a view to a final judgment, and the order to show cause being unauthorized, because it was for a less time than the usual notice of argument prescribed by the rule, and, therefore, by the statute, the order mentioned was unauthorized, and being unauthorized should be prohibited, and by prohibition rendered null and void. The order to show cause, however, is not the only evidence of the assumption of power to accomplish its object, because the justice who signed it had already stated, in an opinion given by him as follows:

> “The writ was properly made returnable at the chambers special term. The term now being held there is a special term of the supreme court, having all the powers and functions belonging thereto, of which it cannot be deprived by a rule which simply partitions business among terms and parts of the same court. Making the writ returnable when it was is also, it seems to me, fully warranted by the rules.”

*476It is only necessary to say further that the right and duty of this court to interfere in such cases by writ of prohibition, is established by the case of *Quimbo Appo*agt. *The People,*(20 *N. Y.,*531), in which the court says: “ It is true that the most frequent occasions for the writ are where the subordinate tribunal assumes to entertain cases or proceedings over which it has no control, but the necessity for the writ is the same where in a matter in which such tribunal has jurisdiction it goes beyond its legitimate powers; and the authorities show that the writ is equally applicable to such cases. Mr. Jacobs,” it is further said, *“*in treating of the writ, after saying that it may issue to inferior courts of every description, whether ecclesiastical, temporal, military or maritime, whenever they attempt to take cognizance of matters over which they have no jurisdiction,” adds “ or if in handling of matters clearly within their cognizance they transgress the bounds prescribed them by the laws of England as where they require two witnesses to prove the payment of a legacy.” And the court says further: “ These cases prove that the writ lies to prevent the exercise of any unauthorized power in all cases or proceedings of which a subordinate tribunal has jurisdiction, no less than when the entire case is without its jurisdiction.” And, further, “ that the writ was never governed by any narrow technical rules, but was resorted to as a convenient mode of exercising a wholesome control over inferior tribunals.” And the court further said, properly, “ the scope of this remedy ought not to be abridged, as it is far better to prevent the exercise of an unauthorized power than to be driven to the necessity of correcting the error after it is committed.”

The relator, Mr. ¡Nichols, is not prejudiced. He may go on with his proceeding initiated by *the certiorari,*according to the prevailing law and practice. This court, by its judgment on this application, does not, in any way, interfere with him in the enjoyment of that right. It interposes only to prevent the exercise of a power which is unauthorized and in *477violation of law. The administration of justice in a due and orderly manner, and which means according to the rules established by statutes or otherwise, is essential to the protection and preservation of personal rights, and the rights of property, and the public welfare; and these rules cannot be departed from, although, in some special cases,, there may be a seeming hardship arising from their due application.

The motion for the writ is granted.

Ordered accordingly.