dissented from the order made in Oakley v. Aspinwall; and it generally detracts somewhat from the confidence we feel in a judgment, that it failed to secure the approval of that eminent and accurate judicial officer. But his dissent was placed in some degree, if not entirely, upon the distinction between a court of superior and one of inferior jurisdiction. I do not understand him to have questioned the correctness of the cases of Edwards v. Russell, 51 Wend. 63; or *347Foot v. Morgan, 1 Hill, 654. In the first of these cases it was declared by the court, and in the other it was expressly adjudged, that a judgment rendered under the circumstances of the one under consideration was void. In the last case the judgment was . offered as a set-off in a subsequent suit between the parties. The chief judge, 1 am confident, proceeded on the distinction referred to, and he would not, I think, have hesitated to pronounce the judgment before Justice Elmendorf void.
It has been suggested that the decision of the motion, in Oakley v. Aspinwall, was not itself made by a competent number of judges. But this is a mistake. Only seven judges took part in deciding the motion, Judge Taylor not having heard the argument. The law did not then, as it now does, require five judges to concur in the decision. The legislature had declared six to be a quorum, and a majority of a quorum was then competent to give a judgment.
I am in favor of affirming the judgment appealed from.
All the judges concurred, except H. R. Seldes", J., who was absent.
Judgment affirmed, with costs.