There is no doubt the special term had jurisdiction to open the default. That was the practice before 1847. (2 How. Sp. T. R. 32; 1 Id. 41, 43, 52.) Although a “ special term ” is mentioned in the present constitution, (Art. 6, §§ 6, 9,) which in this respect is different from the former, yet there is now, as then, but one supreme court. (Id. Art. 6, § 3.) This motion is not included among those which, by the rule may be made at general term. (Rule 27.) In a recent case, not yet reported, Mr. Justice Harris said it was C£ only when the relief sought affected the adjudication that had been actually made, that it was deemed necessary to apply for such relief at the general term.” (Corning agt. Powers, et al., executors, &c., MSS., since reported, ante, p. 54.) I think that is the true distinction. Where the motion is made upon the ground of irregularity in obtaining the judgment or order at general ' term, and the point was not before that court; or if the judgment or order was regular, and the party seeks relief by excusing his default, I see no reason why the application should not be to the special term. It is different where the motion necessarily requires a reconsideration of the adjudication at general term.
The rule entered at Ballston was, therefore, regular, and should not be vacated unless the plaintiff makes sufficient excuse, and the case is one in which an opportunity to be heard might change the result.
The excuse is certainly not very satisfactory. The plaintiff says he was unable to attend, but does not state what prevented his attendance. He was at Fonda attending the county court on Tuesday, and probably heard the result of the motion in time to have reached Ballston before the adjournment. He *576sent his papers to counsel, but he does not state when he sent them; nor does it appear, except by hearsay, that they did not arrive in time; nor is it shown they contained any answer to the motion. But the plaintiff swears he supposed the motion would not be heard. Perhaps this may be considered as a mistake of the practice, and if so, he should still be heard, if it appear he has any answer to the motion. The defendant shows that the default at the July general term was duly entered; and I think it should not have been opened without notice of motion for that purpose, and that the order to that effect was inadvertently granted. But as it was done at general term, it is not probable that order would have been vacated by the special term had there been objection.
The plaintiff was clearly irregular in taking judgment of affirmance by default at Fonda. The order obtained at Canton in September, opening his default in July, was not entered until the 20th of December, thirteen days before the term; and his notice of argument was dated on the 6th of that month, and served by mail on the 16th. These proceedings on their face are fatally defective. The defendant was not affected by that order until it was entered and served.
Upon the whole, I think these parties had better be put in a way to go on with the suit, without troubling them to make any more motions.
The order of the special term must be modified so as to permit the order granted at Canton to stand; and in all other respects it must be affirmed,
"Considering the doubt as to the practice reasonable, I should not have charged the plaintiff with costs, though if the plaintiff had been right, it wa-s safer to appear and oppose. (9 Wend. 450.) But his default at Ballston was regularly entered, and he should have given notice of his motion at Canton; and he has not been charged with the costs of that motion,-or of the July term at Plattsburgh, and I can do no less than charge him with the costs of opposing this motion.
Ordered accordingly.