12. To remit fines and forfeited recognizances in the same cases and like manner as such power was given by law to courts of common pleas. But the first subdivision of this section shall not apply to the county courts of the counties of Kings, Albany, Monroe and Erie. 13. To grant new trials, or affirm, modify or reverse judgments in actions tried in such court upon a bill of exceptions, or case made subject to an appeal to the supreme court. The alterations in this section are very extensive and numerous. We give the section entire as it stood in the code of 1849, in order that the nature and extent of the alterations may be more readily ascertained. "The county courts shall have jurisdiction in the following actions and proceed. ings: 1. The exclusive power to review, in the first instance, a judgment rendered in a civil action within their respective counties, by a court of justice of the peace, or by the justices' courts in cities; 2. For the foreclosure or satisfaction of a mortgage, and the sale of mortgaged premises situated within the county; 3. For the partition of real property situated within the county; 4. For the admeasurement of dower in real property situated within the county; 5. For the sale of the real property of an infant, when the property is situated within the county; 6. To compel a specific performance by an infant heir, or other person, of a contract made by a party who shall have died before the performance thereof; 7. For the care and custody of the person and estate of a lunatic or person of unsound mind, or an habitual drunkard residing within the county; 8. For the mortgage or sale, on the application of a religious corporation, of its real property situated within the county, and the appropriation of the proceeds thereof; 9. To revive judgments entered in the late courts of common pleas in their respective counties, and to exercise the power and authority heretofore vested in such courts of common pleas, over judgments rendered by justices of the peace, transcripts of which have been filed in the offices of the county clerks in such counties; 10. In cases in which jurisdiction was vested by the revised statutes, in the late court of common pleas, under the provisions relating to attachments against absconding, concealed or non-resident debtors; to voluntary assignments, made pursuant to the application of an insolvent and his creditors; to voluntary assignments by persons imprisoned on execution in civil cases, and the licensing and regulation of ferries, and the regulation of fisheries in their respective counties until the first day of January, 1850; 11. To remit fines and forfeited recognizances, in the same cases and in like manner as such power was given by law to courts of common pleas." This section corresponds with section 33 of code 1848, and on an objection being raised as to the constitutionality of that section, the supreme court held it to be constitutional. Beecher v. Allen, 5 Barb. S. C. R. 169. § 31. [34.] (Amended.)-When open-Terms.-The county court is always open for the transaction of any business for which no notice is required to be given to an opposing party. At least two terms in each county for the trial of issues of law or fact, and as many more as the county judge shall appoint, shall be held in each year at the places in the counties respectively desig nated by statute for holding county or circuit courts, on such days as the county judge shall from time to time appoint, and may continue as long as the court deem necessary. Notice of such appointment shall be published in the State paper at least four weeks before any such term, and also in a newspaper, if any, printed in the county; so many of such terms as the county judge shall designate for that purpose, in such notice, may be held for the trial of issues of law, and hearing and decision of motions and other proceedings at which no jury shall be required to attend. We insert the section for which the above is substituted for the reasons mentioned in the note to section 30. "At least two general terms of each county court, and as many more as the county judge shall appoint, for the final hearing of actions or proceedings pending therein, shall be held in each year at the places in the counties respectively designated by statute for holding county or circuit courts, on such days as the county judge shall from time to time appoint, and may continue as long as the court deem necessary. Notice of such appointment shall be published in the State paper at least four weeks before any such term, and also in a newspaper, if any, printed in the county; so many of such terms as the county judge shall designate for that purpose, in such notice, may be held for the trial of issues of law, and hearing and decision of motions and other proceedings at which no jury shall be required to attend." A doubt is said to exist as to the right of the court of sessions to sit at the same time with the general terms of the county courts. See judiciary act, (laws of 1847, p. 332, s. 45.) It is provided by statute, that the court of sessions of the city and county of Albany, may be held at the times and places at which the general terms of the county courts are by law appointed to be held, and may continue as long as the court deem necessary. (Laws of 1849, p. 111. cap. 76.) 32. [36, 37, 38.] Jurors.-Jurors for the county courts and courts of sessions, shall be drawn from the jury box of the county, and summoned in the same manner as for the trial of issues at a circuit court. The rules of the supreme court are applicable to county courts. TITLE V. Of the Superior Court and Court of Common Pleas, in the city of New-York, and the Mayors' and Recorders' Courts in other cities. 34. Common Fleas for New-York to review certain judgments. 35. General and special terms. 36. By whom held. 37. Judgments where given. 38. Concurrence of two judges necessary. 40. Superior Court, of whom to consist. 43. 44. How classified. Vacancies how filled. 45. Judges, their salaries, &c. 46. Terms of Superior Court. 47. Suits may be transferred. 48. Jurisdiction of transferred suits. 49. Hearing of suits transferred. 51. Section applied. 33. [39.] Jurisdiction.-The jurisdiction of the superior court of the city of New-York, of the court of common pleas for the city and county of New-York, of the mayors' courts of cities, and of the recorders' courts of cities, shall extend to the following actions : 1. To the actions enumerated in section one hundred and twenty-three, and one hundred and twenty-four, when the cause of action shall have arisen, or the subject of the action shall be situated, within those cities respectively; 2. To all other actions where all the defendants shall reside, or be personally served with the summons within those cities respectively, except in the case of mayors' and recorders' courts of cities, which courts shall only have jurisdiction where all the defendants shall reside within the cities in which such courts are respectively situated. The supreme court shall have power and authority to remove, by order, into the said supreme court, and the same power and authority to change the place of trial to any other county of this State, of any transitory action pending in said superior court, or court of common pleas for the city and county of New-York, which it would have, had such action been commenced in said supreme court; such order for removal and for change of place of trial shall be made in the supreme court upon motion, and on filing a certified copy of such order in the office of the clerk of the said superior court, or of the said court of common pleas, such cause shall be deemed to be removed into the supreme court, which shall proceed therein as if the same had originally been commenced there; and the clerk of either of said courts in which such order shall be filed, shall forthwith deliver to the clerk of the county in which, by such order, the trial is ordered to be had, to be filed in his office, all process, pleadings, and proceedings relating to such cause. 3. To actions against corporations, created under the laws of this State, and transacting their general business, or keeping an office for the transaction of business, within those cities, respectively, or established by law therein, or created by or under the laws of any other state, government, or country, for the recovery of any debt or damages, whether liquidated or not, arising upon contract made, executed, or delivered within the state, or upon any cause of action arising therein. In Brewster v. Honigsberger, an action originally brought in the superior court, and by order removed into the supreme courts upon the authority of 2 R. S. 313, ss. 15, 16, 17, and this sub. of sec. 33. Hurlbut J. held that the supreme court had power only to change the place of trial, and that that this section was entitled only to that construction, and he vacated the order for removing the cause, 2 Code Rep. 50. We believe, however, that the construction given to this section by Mr. Justice Hurlbut is not followed by the other Justices, and that such orders are now made in all cases, where sufficient cause for the removal is adduced. See Carpenter v. Spooner, 3, Code Rep. 23, 2 Sand S. C. R. 717. In Ford v. Babcock, 2 Sand. S. C. R. 518, the superior court, in denying the authority of a decision of the supreme court, decided that the superior court as now constituted is co-ordinate with the supreme court. The decisions of the lattter are not authoritative, although to be treated with great respect; and the superior court in the cases of Shore v. Shore, 2 Sandford, S. C. R. 715. Anon, 2 Code Rep. Washington, Bank of Westerly v. Palmer, 2 Sand S. C. R. 686, and other cases, made decisions adverse to decisions in the supreme court, and in like manner the court of common pleas for the city and county of New-York, in Mills v. Winslow, 3 Code Rep. 44, refused to be bound by a decision of the superior court; and the surrogate's court of the city of New-York, has repeatedly of late refused to be bound by a decision at special term, of the supreme court. The superior court in the cases of Cashmere v. Crowell, 1 Sand. S. C. R. 715, 1 Code Rep. 95, Cashmere ▾ De Wolf, 2 Sandf. S. C. R. 379, claimed and exercised a concurrent jurisdiction with the United States Court in Admiralty over a question of salvage, the case in other respects being within the scope of the jurisdiction of the superior court, but that court has decided that it will not sanction any attempt by fraud and misrepresentation to bring a party within the jurisdiction of this court. Carpenter v. Spooner, 2 Code Rep. 140. 2 Sand. S. Čode Rep. 717, 3 Code Rep. 23. Where a party was induced by a false statement to come within the jurisdiction of this court, and was then served with a summons and complaint in an action in this court, such false statement having been made for that purpose, the court on motion set aside the service. Ib. Where in an action in the court of common pleas for the city and county of New York, the defendant (a non-resident) was served with the summons out of the jurisdiction of the court, and he without objection or reservation gave notice of appearance, and then moved to set aside the proceedings, for want of jurisdiction in the court over his person; the court held that the defendant by appearing voluntarily and without objection, had conferred jurisdiction. Smith v. Dipeer, 2 Code Rep. 70. The 21st section of the judiciary act of December, 1847, (Laws of 1847, p. 641, s. 21,) enacts that the superior court and the court of common pleas for the city and county of New-York, shall respectively have and possess the same equity jurisdiction, which is conferred upon the several county courts of this State by the thirty-first section of the judiciary act of May, 1847, (Laws of 1847, p. 328, s. 31,) by which it is enacted that the county courts shall have equity jurisdiction in the following cases. 1. For the foreclosure of mortgages, when the mortgaged premises are situated in such county. 2. For the sale of real estate of infants, when the real estate is situate and the infants reside in such county. 3. For the care and custody of lunatics and habitual drunkards, residing in such county. 4. For the satisfaction of judgments and decrees, on which there shall remain due a sum exceeding $75, out of the property of a debtor, when an execution has been returned unsatisfied and such debtor resides in such county. 5. For the partition of lands in such county. 6. For the admeasurement of dower in lands in such county. There appears nothing in the code inconsistent with these provisions; and if the Legislature had power to confer this equity jurisdiction on these courts, it is presumed that the provisions of the judiciary act are still in force, and that the superior court of the city of New-York, and the court of common pleas for the city and county of New-York, may now take cognizance of the matters enumerated in section 31 of the judiciary act of May 1847. For the other statutory provisions, regulating the superior New-York, see 2 R. S. 272, 317. Laws of 1847, p. 279, 560. 497. Laws of 1849, p. 487, 168. Laws of 1851, p. 8. court of the city of Laws of 1848, p. As to the common pleas for the city and county of New-York, see 2 R. S. 272, 293, 317. As to mayors' and recorders' courts, see 2 R. S. 293, 311. As to the mayor's court of Albany, 2 R. S. 294, 295. ss. 5, 6. Laws of 1844, cap. 86. Laws of 1848, cap. 24. As to the mayor's court of Troy Laws of 1848, p. 92. As to the recorder's court of Buffalo, see 2 R. S. 302, see 63. p. 481, cap. 362. Laws of 1850, p. 208. Laws of 1848, As to the recorder's court of Oswego, see Laws of 1848, p. 490, cap. 374, s. 3, and Laws of 1849, p. 186. As to the recorder's court of Utica, see 2 R. S. 307, s. 89. Laws of 1844, cap. 320. Laws of 1846, cap. 95. As to the city court of Brooklyn, see laws of 1849, p. 170. Laws of 1850, p. 148. Mayor's court of Rochester, abolished, see laws of 1849, p. 435 It has been doubted, and certainly with some show of reason, whether the superior court can lawfully exercise any equitable jurisdiction. The term equitable is here |