The plaintiff moves to discharge two orders for irregularity. I have no doubt, that the orders granted by Justice Hoffman on defendant’s motion, and the two granted by Ch. J. Oakley, on plaintiff’s motion, were granted on the 13th of September. There is no doubt, that it was regular for the plaintiff to apply to the Chief Justice, and that it was not his duty to have gone into the room where Justice Hoffman was sitting, to avoid the possibility of being defaulted there. It is quite probable if the case had been called publicly, when plaintiff’s counsel applied to Justice Bosworth for the orders subsequently granted by Chief Justice Oakley, that all difficulty could have been obviated.
I have no doubt that Mr. Passing supposed that those applying for orders on default of the opposite party to appear, might as properly go before Justice Hoffman, as attorneys whose adversaries were present and accompanied them. Justice Hoffman, I presume, would not have granted the orders which he did grant, had he not understood that the motions had been publicly called in the General Term Room, and that the justice sitting there, on account of being fully occupied, desired that he should see that the order4o be entered was one justified by the notice of it, and that there was proper evidence of due service of it.
In vacation, the only justice before whom orders by default can be properly taken, is the one sitting in Chambers for the purpose of hearing motions.
In term time, such defaults can only be granted by the justice holding the special term, in the room which he occupies for such business.
When counsel of both parties attend, they, as well as counsel applying for ex parte orders, may go before any justice, who may be in attendance at any of the rooms of the court.
*161I think the two orders granted by Justice Hoffman should be vacated, but without costs, and on condition that plaintiff stipulate to vacate the orders granted by Chief Justice Oakley, and attend upon the orders to show cause which were returnable on the 13th instant, to the end that a hearing may be had thereon, on such day as the counsel may name, or if they do not agree in relation thereto, as the court may designate.