(dissenting.) This is an appeal from two orders, —one made ex parte January 1, 1893, by Justice BARNARD, of the second judicial district; and one made on motion at special term, June 3, 1893, in the third judicial district, by and before Justice' EDWARDS. Various objections are raised by the respondents to the consideration of these appeals by this court, some of which, at least, are worthy of careful consideration. The first objection of this class is that no appeal will lie from the order of Justice BARNARD, made ex parte on the 31st of January, 1893. It seems quite clear upon authority that an ex parte order cannot be appealed from as such. The only way in which'such review can be had is-by application to the special term, or the judge making the order, to vacate the same, which, if refused, the order denying such motion is appealable. This was expressly held in a. special proceeding in *353the case of Hoyt v. Mann, 7 N. Y. St. Rep. 420, where the opinion was written by Daniels, J., and concurred in by Judges Van Brunt and Brady. To the same effect is Schell v. Railway Co., 51 Barb. 273, which was a special proceeding to remove the president of a railroad company, where it was held that the granting an order to show cause ex parte, returnable at a future day, and granting a temporary injunction pending the motion, was not an appealable order; and until a hearing has been had on the return of the original order, or a motion to vacate or modify the same has been made and decided, no appeal would lie. Upon this subject the cases are numerous and uniform. Savage v. Relyea, 3 How. Pr. 277; Lindsay v. Sherman, 5 How. Pr. 308; Bank v. Spencer, 15 How. Pr. 14; Aldinger v.Pugh, 57 Hun, 181, 10 N. Y. Supp. 684. Nor is appeal allowable under the provisions of section 1356, Code Civil Proc. In re Dunn, (Sup.) 14 N. Y. Supp. 14; In re Johnson, 27 Hun, 538; People v. Common Council of Buffalo, 30 Hun, 636. It would seem to follow, therefore, that the order made by Justice BARNARD ex parte on the 31st of January, 1893, was not appealable, and this appeal, so far as it seeks to review that order, must be dismissed.
It is insisted by the learned counsel for the respondents that the order made by Justice EDWARDS at special term is not appeal-able, as it was a denial of an order to show cause, and therefore did not affect a substantial right. The language of the order is as follows:
“It is ordered that the motion for an order requiring the defendants to show cause why they should not be punished for a contempt of court be, and the same is hereby, denied.”
Did such an order affect a substantial right, so as to bring it within the provisions of section 1356, Code Civil Proc.? That section is as follows:
“An appeal may be taken, to the general term of the supreme court, or of a superior city court, from an order, affecting a substantial right, made in a special proceeding, at a special term or a trial term of the same court, or, in the supreme court, at a term of a circuit court; or made by a judge of the same court, in a special proceeding instituted before him, pursuant to a special statutory provision; or instituted before another judge, and transferred to, or coniinued before him.”
It can hardly be maintained that the desired order to show cause affected a substantial right. The refusal left the party still at liberty to move for the same relief in an ordinary motion on eight days’ notice. No substantial right was affected by the refusal of the court or judge to grant an order to show cause. The order, if granted, could only operate as a short notice of motion; and its refusal in no way impaired or prejudiced the rights of the relators, and for that reason the order of the special term was not appealable under the provisions of the section of the Code above quoted. Rule 37 of the supreme court provides that all motions shall be brought on on notice of eight days, unless a shorter term shall be prescribed. This is but an amplification of the provisions of section 780 of the Code of Civil Procedure. In Gross v. Clark, 1 Civil *354Proc. R. 25, Daniels, J., in discussing the nature and effect of such' an order uses this language: “It was simply a substitute for an ordinary notice of motion, and it was within the usual power exercised by the court or judge thereof to make it.” Nor do we think the order in this matter one made by a judge “in a special proceeding instituted before him pursuant to a special statutory provision,” as provided in the latter part of section 1356 of the Code of Civil Procedure, and made appealable under that section. It is not the decision of a single judge sitting at special term in a matter affecting a substantial right' which can be reviewed on appeal. In re Brady, 69 N. Y. 215-220. But as we have seen, this order being only a notice of motion in effect, and in no way involving the merits of the controversy, or affecting a substantial right, does not, therefore, come within the rule laid down in the authorities referred to by the learned counsel for the relators. The question of the right of a citizen to invoke the aid of the . court to compel the performance by a public officer of a public duty is not involved in these applications for an order to show cause, or in the refusal to grant the order asked for on such application. We are therefore clearly of the opinion that the granting or refusal of the order was discretionary, and, as it did not affect a substantial right, is not appealable.
• It is not impossible that a case might arise where haste was important, and the granting or refusing an order to show cause as a short notice of motion, for reasons given in the moving papers, might affect a substantial right; but no such reason is given in the papers on this motion, and it is quite apparent from the relators’ delay in moving that no such reason .exists. This is not, therefore, such a case. As the granting or refusing of this order was, as we have seen, in the discretion of the judge or court, this court, on appeal, will not interfere with the exercise of such discretion, unless there has been a clear abuse of the exercise of such discretion. Morrison v. Agate, 20 Hun, 24, 25; Bryon v. Durrie, 6 Abb: N. C. 140. Certainly, if what has been shown as to the nature of the order denying the relators’ application is correct, no abuse of the exercise of the discretion of the judge at chambers or special term has been shown. The application for these orders was made to and refused by the same judge whose orders the relators insist were disobeyed. It is fair to presume that they knew, better than this court can. the nature of the orders made by themselves, and whether they had been contumaciously violated; and, acting upon the knowledge, they declined for that or other reasons to grant these orders.
- It is also urged with a great deal of force that the relators have delayed for more than a year in making this motion, and have by loches waived any alleged violation of the orders which might have occurred. It has frequently been held that loches in moving to punish an alleged contempt is good ground for denying the motion. No sufficient reason is given for this delay. The authorities seem to be uniform in this country and England that an attachment for *355contempt should be moved for by the party claiming to be aggrieved in a reasonable time. Rap. Contempt, § 92; Mongie v. Cheney, 1 Hill, 145. In King v. Surry, 7 Term B. 452, it was held that a delay of 10 months barred an attachment. Rex v. Perring, 3 Bos. & P. 151. In Jourden v. Hawkins, 17 Johns. 35, 18 months’ delay was held fatal. On these grounds alone the orders asked for might have been properly denied.
If the views expressed herein are correct, it is probably unnecessary to go further, as they would result in the affirmance of the orders and dimissal of the appeals. But as the order made by the special term sought to restrain a board of state officers from performing an act about to be performed in the discharge of a duty imposed by statute, that court had no jurisdiction to grant such an order, as the same could only be granted at a general term. Code Civil Proc. § 605; People ex rel. Derby v. Rice, 129 N. Y. 461, 29 N. E. 358. The order being void, the special term could not punish its violation as a contempt, even if it has been disobeyed. But it is urged by the learned counsel for the relators, that if neither of these orders are appealable, it is the duty of this court, if satisfied that an offense was committed, to grant the same, and that with that view they have inserted in the notice of appeal an application to this court for such an order; and in support of this suggestion we are referred to sections 2269 and 2271 of Code as authority upon this point.
Section 2269 reads as follows:
“The court or judge, authorized to punish for the offense may In its or his •discretion, where the case is one of those specified in either of the last two sections, and, in every other case, must, upon being satisfied, by affidavit, of the commission of the offense, either (1) make an order, requiring the accused to show cause before it, or him, at a time and place therein specified, why the accused should not be punished for the alleged offense; or, (2) issue a warrant of attachment, directed to the sheriff of a particular county, or, generally, to the sheriff of any county where the accused may be found, commanding him to arrest the accused, and bring him before the court or judge, either forthwith, or at a time and place therein specified, to answer for the alleged offense.”
Section 2271, also referred to by the relators as conferring this original authority upon this court, reads as follows:
“Where the order to show cause, or the warrant, is returnable before the court, it may be made, or issued, as prescribed in the last section but one, by any judge authorized to grant an order without notice, in an action pending in the court; and it must be made returnable at a term of the court, at which a contested motion may be heard.”
These sections do not confer any original jurisdiction on the general term of this court to perform the duty either of a special term or single judge, and, in the absence of express statutory authority, it may well be doubted whether it has any original jurisdiction of matters of contempt, except perhaps the inherent power of punishing for contempts of its own orders. Nor do we think either section 8 or 14 of the Code of Civil Procedure, to which we are referred by the relators’ counsel, confers any. such original jurisdiction *356on this court, even if the facts authorized or justified any such belief that the acts of the defendants were contempts of the orders of a special term. But, the question having been raised, it may not be improper to inquire what order, if any, of the supreme court has been violated by the defendants. The first order set out in the record was made on the 7th day of December, 1891, at a special term held at Albany by Mr. Justice EDWARDS, directed that a writ of peremptory mandamus issue out of and under the seal of the court commanding the state board of canvassers to issue a certificate of election to the office of senator in the fifteenth senatorial district of this state, disregarding the so-called return of the board of county canvassers of the county of Dutchess, which is signed by John Mylod as secretary of said board pro tem., and is not signed by a county clerk of Dutchess county or certified under the seal of said county clerk. On the making of this order a stipulation was entered into by the parties interested, signed by their respective attorneys, staying all proceedings by the state board of canvassers, these defendants, until the decision of the court of appeals upon the above order, and providing for an appeal to that court; the principal question being as to the authority of the returns made to such defendants, signed by John Mylod as secretary pro tem., as aforesaid. The case shows that the appeal from said order was affirmed pro forma by the general term, and heard and decided in the court of appeals on the 29th of December, 1891. On that day the court of appeals handed down the following decision:
“It is ordered and adjudged that the order of the special term herein, dated December 7, 1891, and the order of the general term affirming the same, and the same writ itself, be modified by striking-out the provisions requiring a return to be certified by and to come from the county clerk of Dutchess county, and issued under his seal, and the said order so appealed from as so modified be affirmed, without costs.”
The case does not show that any remittitur was ever filed making the decision of the court of appeals the judgment of the supreme court, although the affidavits of one of the relators’ attorneys shows that one was prepared, differing somewhat from the decision, and handed to one of the counsel who had up to that time acted with the party opposing the validity of the Mylod returns. It is insisted by the learned counsel for the defendants that, as the case has never been remitted to this court by the filing of a remittitur, the matter is not properly here for consideration, and upon that .point we are referred to the case of People v. Village of Nelliston, 79 N. Y. 638; and, also, Bliss v. Hoggson, 84 N. Y. 667. But we do not deem it necessary to pass upon that question in this case. I am inclined to the opinion that within the express decision of the court of appeals, so far as to the defendants as state canvassers, the Mylod returns were the valid returns, and the only ones which they were authorized to canvass, after the decision of the court of appeals modifying that of the special term. The court of appeals, in passing upon the sufficiency of that return in this case, reported under the name of People v. Rice, 129 N. Y. 449, 29 N. E. 355, by, Peckham, J., says:
*357“We think that, under all the facts, the steps taken to certify and authenticate the statements were valid, and the proceedings by which they were sent to and received by the secretary of state and the other state officers were sufficient to entitle them to be filed and considered by the board of state canvassers as the properly certified result of the canvass of the county canvassers.”
With this positive declaration by the court of appeals squarely overruling the decision of the special term, the order of which is made the basis of these proceedings for contempt, we see no escape from the conclusion that the defendants violated no order of any court; and this conclusion is emphasized by the decision of the court of appeals in Hasbrouck v. Board, 135 N. Y. 522, 32 N. E. 242, where it was expressly held that the returns sought by the relators to be substituted for the Mylod returns were invalid. We therefore fully concur with Justices BARNARD and EDWARDS, whose opinions we append and indorse,1 that the board of state canvassers did no act which was a contempt of any order of this court. The orders appealed from must be affirmed with costa and printing disbursements.
The following are the opinions of Justices BARNARD and EDWARDS, referred to:
BARNARD, J. No presumptive case is made out of contempt against the defendants for any violation of an order of the supreme court. The board of supervisors of Dutchess county canvassed the votes as to state senator by throwing out certain so-called “marked ballots.” The election law was imperative that such votes should be counted in the first instance. The clerk refused to sign the return, and the board made Mr. Mylod its clerk, to certify its count. These returns, so certified, were forwarded to Albany. It was made a question whether the county clerk must certify the return, and the court of appeals subsequently held that a board of supervisors was empowered with the right to certify the return by another person than the county clerk if he refused to sign the certificate. The appeal from Judge EDWARDS’ order had only this point in it. Before the decision by the court of appeals the supervisors had by order of this court recounted the vote so as to elect Mr. Deane, and the vote so recounted was certified by a new county clerk, the old one having been removed by the governor; and this amended return got to the proper officers before the decision by the court of appeals, so that when that decision came the state canvassers had, or ought to have had, this corrected return. If the board violated its duty, and counted the uncorrected return, it was not a contempt of an order of any court. The order of the court simply provided a legal return of the canvass of the votes, and when it was filed-the duty of the court was accomplished. Motion for order to show cause denied.
EDWARDS, J. This is an application to a special term of this court, under section 2269 of the Code of Civil Procedure, for an order requiring the board of state canvassers to show cause why they should not be punished for an alleged violation of an order of this court. The same application, upon the same affidavits, was heretofore made to Justice BARNARD at chambers, who, under that section of the Code, had the same jurisdiction to issue an order to show cause that the court has at special term. The learned justice who heard the application considered it deliberately, and came to the conclusion that the order ought not to be granted. In his written opinion he says that no presumptive case is made out for a contempt against the defendants for any violation of an order of the supreme court. He further says that if the board violated its duty, and counted the uncorrected return, it was not a contempt of any order of any court This court is now asked upon this application upon the *358same motion papers ■ that were before Justice BARNARD, substantially, to review the decision of the learned justice, and to reach a different conclusion. It is maintained by the learned counsel for the relators that the justice to whom the prior application was made erred in his decision. I think, if this were so, the better practice would have been to have made this application at a special term held by the same justice, and, if satisfied of any error of judgment, no one would have been more prompt to correct it. The duty of the court upon this'application is very clear. I shall follow the decision of Mr. Justice BARNARD, and, if such decision be error, the relators have a perfect remedy. The application is denied.