People v. Davis , 61 Barb. 456 ( 1872 )

Inoraeam, P. J., (dissenting.)

I do not think that where the statute requires two justices to hold the special sessions, the same can be satisfied by the voluntary absence of either from the court, so as to allow the court to be held by the other alone.

[First Department, General Term, at New York, January 1, 1872.

There must be some actual disability existing to prevent the attendance of the justice.

The mere statement, in the caption of the. record, that the other justice was absent, from disability, is not conclusive. There may be some doubt as to the proper mode of raising this question; but I am not willing to assent to the proposition that such entry is sufficient to authorize the court to be permanently held by one justice.

Convictions affirmed.

Ingraham, P. J., and Cardozo and Geo. G. Barnard, Justices.]