dissented. — Formerly, and until a period comparatively recent, in all the superior courts of law, both in England and in this and most of the sister States, there was only one branch of jurisdiction in each court. All proceedings were had, or were supposed to be had, and all decisions were made, before the full court in bano. It was not, perhaps, essential to the validity of the proceedings, that any particular number of judges should have attended, although, I believe, in the Queen’s Bench four generally, and never less than two attended, and in the old Supreme Court of this State, three, almost invariably, composed the full bench; and I was not aware until yesterday, that it was ever composed of only one judge. Whether, however, composed of one or three judges, its decisions were final, as far as the Supreme Court was concerned; and the parties had no right to question them, except by writ of error to the court for the correction of errors. The only deviation from this course, before the adoption of the present constitution, was in the establishment of special terms, in 1830, for the purpose of hearing and deciding, during the vacations intervening between the calendar terms, all non-enumerated business, except such as the court should direct to be heard in term.
The present constitjition recognizes the distinction between special and general terms; and the blending, I may say fusion, of equity and common law jurisdiction, together with considerations of convenience and improvement, induced the legislature, both by the judiciary act of 1847, and by the Code, expressly to establish a special term, as a distinct, but inferior branch of the court, in which generally, judgments were to be .rendered, and orders made in the first instance by a single judge, and from which an appeal would lie to the general term, to consist of not fewer than three judges ; so that the general *376term, at least practically, for most purposes, is chiefly an appellate branch of the court.
In all actions, and now, by a late statute, in all special proceedings, an appeal is allowed from the special term to the general term, from every judgment and every oi’der affecting a substantial right. This right adheres to all cases, except where the law expressly provides the contrary. Unless, therefore, there is some provision having particular reference to proceedings relating to the opening and laying out of streets, denying this right, an appeal lies in such cases from an order of the special term to the general term. It is maintained that this exception is contained in the act of 1813. This act says that “ the report” of the commissioners, “ when confirmed by the court, shall be final and conclusive,” &c., and it is urged, because the order of the special term confirms the report, and because the special term is “ the court that the order of the special term in this case is final and conclusive, and that the superior or appellate branch of the court cannot entertain any application to disturb it.
Undoubtedly, the special term is the court, though not the whole court — not the court in the total and ultimate exercise of its power; the decisions of the special term, when acquiesced in, are as final and as effectual as those of the general term ; but it is assuming the very question at issue, to suppose those decisions to be final in cases like the present. They are final, indeed, if they are not appealable; and they are not appealable if they are final.
According to the decision of the Court of Appeals in the Canal and Walker-street case, the language of the act of 1813 imports that there shall be no appeal frtun the decision of the Supreme Court to the former court; but I cannot discover anything in the opinion of Judge Gardiner which goes any further. In this species of special proceedings, when the Supreme Court confirms the report of the commissioners, there can be no appeal to the Court of Appeals ; because the act declares that the report in such case “shall be final and conclusive.” But is the report confirmed by the Supreme Court, according to the true intent and meaning of the act, or even according to the popular signification of the word, when the order of the *377special term is appealed from, and before the general term has taken action on such appeal? Until that is done, the order of the special term is in suspense. It would, I think, be a strained construction of the language of the act of 1813, to consider that it forbids the Supreme Court itself to review its own decision — that it provides that an order made by a court held by a single judge, shall not be questioned or re-considered by that judge himself, or by his brethren holding a general term, — and that it imports that cases of this description shall be exempt from that re-deliberation and more solemn consideration to which judgments and orders in other cases are subject.
This right of review is a necessary and inherent power in every court, except when it is expressly denied by statute in positive and unqualified terms. All judgments and orders of a special term, when appealed from, are in abeyance as it were, until disposed of by the general term ; and though they may be termed judgments or orders “of the Court,” they are not operative until their final disposition ; then, and only then, they become complete; and it is this complete action of the court, when the litigants require it, that makes the confirmation a final and conclusive adjudication.
Neither, until this occurs, does the right of the Corporation to the land, or the owners to damages, accrue.
I am, therefore, of opinion, that the application to dismiss the appeal should be denied.