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used to indicate the powers of a court of chancery opposed to the rules of common law. These powers were originally claimed and exercised as a prerogative of the crown, and the court of chancery of the colony of New-York so exercised its jurisdiction. After the secession of this colony from the mother country, the court of chancery exercised the same powers as before. The constitution of 1777 was silent on the subject. The constitution of 1822 (art. 5, sec. 2), authorized the legislature to invest circuit judges, county courts and subordinate courts with equity powers. The superior court of the city of New-York did not then exist. It was established in 1828, (laws of 1828, p. 141,) when it had original jurisdiction only of "all local actions arising within the city and county of New-York, and all transitory actions, although the same might not have arisen therein." It had also an appellate jurisdiction, but no equity jurisdiction. This was the jurisdiction of this court at the time of the adoption of the constitution of 1846. By the constitution of 1846, (art. 14, sec. 8,) the offices of chancellor and the other officers of the court of chancery were abolished, and thus, indirectly but in effect, was abolished the court of chancery, and if the constitution had there rested, all powers of a court of chancery in this State would have been extinct or suspended,-they would have had no abiding place and no person or court to administer them. But the constitution went farther and located these powers in the supreme court. [art. 6, sec. 3.] Law and equity still remained distinct. By the same constitution [art. 6, sec. 14], the legislature is empowered to confer "equity jurisdiction in special cases on the county judge" and all local courts, including the superior court, were to remain until otherwise directed by the legislature with their then present power and jurisdictions." [art. 14, sec. 11.] The superior court had then no equity jurisdiction, and the constitution did not authorize the legislature to invest it with any, and it has no such jurisdiction. But see art. 6, sec. 5.

If the constitution did authorize the investing this court with this power, it has not exercised that authority except by section 21 of the judiciary act, [laws of 1847, p. 641,] by which equity powers such as were exercised by county courts were conferred on this court. Further than this, until the passage of the code, this court never went. Since the code, however, it claims a general jurisdiction in equity, as well in transferred suits as in actions originally commenced therein, but whether they can lawfully exercise jurisdiction in either case admits at least of a doubt. The code evidently intended to abolish the distinctions between a legal and equitable jurisdiction as it did the distinction between law and equity. In the latter case it has been decided that it has not effected its object, [see notes to section 69 of this code.] and probably it has not in the former case. Chancellor Walworth, in Ames v. Blunt, 2 Paige 95, says the powers of this court [the court of chancery,] are vested in the chancellor. These powers cannot be taken from him by any act of the legislature. When the office of chancellor was abolished his power as chancellor reverted to the people, and could only be vested in any other body by the constitution. The constitution vested these powers in the supreme court, and except in the case of the county courts the supreme court is the sole depositee of, and can alone exercise the powers of a court of chancery in this State.

$34. [40.] Common pleas to review certain judgments.—The court of common pleas for the city and county of New-York, shall also have power to review the judgments of the marine court of the city of New-York, and of the justices' courts in that city.

And see section 427 and note.

§ 35. [41.] Terms.-The superior court of the city of New-York, and the court of common pleas for the city and county of New-York, shall, within twenty days, appoint general and special terms of those courts, respectively, and pre

scribe the duration thereof; and they may, from time to time, respectively, alter such appointments; and hereafter no fee shall be paid for any service of a judge of either of those

courts.

$36. [42.] By whom held.—A general term shall be held by at least two of the judges of those courts respectively, and a special term by a single judge.

§ 37. [43.] Judgments, where given.-Judgments upon appeal shall be given at the general term; all others, at the special term.

Ryan v. M'Connell. 1 Sand. S. C. R. 709, 1 Code Rep. 93, and see note to section 246.

38. [44.] Judgment, how pronounced.-The concurrence of two judges shall be necessary to pronounce a judgment at the general term. If two do not concur, the appeal shall be re-heard.

39. Crier.-A crier shall be appointed by the superior court of the city of New-York, and by the court of common pleas for the city and county of New-York respectively, to hold his office during the pleasure of the court. He shall receive a salary to be fixed by the supervisors of the city and county of New-York, and paid out of the county treasury.

40. Superior Court.-The superior court of the city of New-York shall from the first day of May, one thousand eight hundred and forty-nine, consist of six justices.

This section and those which follow it to section 50 inclusive, are taken from an act passed 24th March, 1849, as amended by an act passed 10th April, 1849. (Laws of 1849, pp. 168, 487.)

41. Justices to be elected.-Three justices of such superior court, in addition to the justices now holding office, shall be elected by the electors of the city and county of New-York, at the annnal charter election to be held in that city on the second Tuesday of April, one thousand eight hundred and forty-nine.

42. How voted for.-Such justices shall be voted for together on one ballot, which shall be distinct from any other ballot at the same election, and deposited in a separate box, marked "superior court." The votes shall be canvassed and certified in the same manner as votes for the recorder of the

city of New-York, and a certificate thereof shall be filed with the secretary of state.

On the 10th of April, 1849, John Duer, John L. Mason, and William W. Campbell were elected under this provision, and entered on their duties on the 2d of May following.

§ 43. How classified.—The justices so elected shall, immediately after the votes are canvassed, be classified by lot, to be publicly drawn by the register and clerk of the city and county of New-York, in the presence of the mayor or recorder of the city of New-York, and the certificate of such drawing and classification shall be signed by such register and clerk and by the attending mayor or recorder, and filed in the offices of the register and clerk. The classes shall be numbered first, second, and third, according to the term of service of each; the first class being that which has the shortest time to serve. The term of offices of each of such justices shall commence on the first day of May, one thousand eight hundred and forty-nine, and the term of the justice of the first class shall expire on the thirty-first day of December, one thousand eight hundred and fifty-one; of the justice of the second class, on the thirt-first day of December, one thousand eight hundred and fifty-three; and of the justice of the third class, on the thirty-first day of December, one thousand eight hundred and fifty-five.

$ 44. Vacancies, how filled.-After the expiration of the terms of office under such classification, the term of office of all the justices of the superior court of the city of New-York shall be six years; and any vacancy occurring in the offices created by this title, shall be filled in the manner prescribed for filling vacancies in the offices of the present justices.

45. Judges' salaries, &c.-The justices elected pursuant to this title, subject to the provisions contained in section fortynine, shall have the same powers and perform the same duties, in all respects, as the present justices of such superior court, and shall receive the same salaries payable in like manner.

The powers of these judges are co-extensive with that of the other judges of this court. Huff v. Bennett, 2 Code Rep. 139.

§ 46. Terms.-A general term of the superior court may be held by any two of the six justices thereof, and a special term

by any one of them; and general and special terms, one or more of them, may be held at the same time.

§ 47. Certain suits may be transferred.—All civil suits at issue at the time of the passage of this act, that from and after the first of May, 1849, shall be placed upon the calendar of the supreme court at any general or special term thereof, to be held in the city of New-York, and which shall be in readiness for hearing on questions of law only, or are equity cases, may by an order of that court, or of the judge holding such special term, be transferred to the said superior court of the city of New-York, and to be heard at the general terms thereof.

In pursuance of this provision 454 causes were transferred from the supreme court to the superior court. A large proportion of these suits had been commenced and were pending in the late court of chancery on the first Monday of July, 1847, when the constitution went into effect, and abolished that court. This section was amended by an act passed 16th January, 1851, (Laws of 1851, p. 8.); the amendment consisted in striking out at the end of this section the words "hereinafter [in the last-mentioned act called "hereinbefore"] provided for."

§ 48. Jurisdiction.-The said superior court shall have jurisdiction of every suit so transferred to it, and may exercise the same powers in respect to every such suit, and any proceedings therein, as the supreme court might have exercised, if the suit had remained in that court.

49. Hearing of transferred suits.-It shall be the special duty of the three justices to be elected under the provisions of this title and of their successors, to devote their time and labors, for the term of two years, from the first of May, one thousand eight hundred and forty-nine, to the hearing and determination of the suits transferred from the supreme court; and for that purpose they, or any two of them, shall hold a general term of the said superior court, of at least two weeks in duration, in each month of the year, except the month of August.

This section [49] is repealed, [Laws of 1851, p. 8.] and no section Has been substituted.

§ 50. Appeal.-Appeals from the judgments of the superior court in such suits, may be taken to the court of appeals, in the same manner as from the judgments of the superior court in actions originally commenced therein.

51. Section applied.-The provisions of section twentyeight of this act, shall apply to the said superior court.

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§ 52. [45.] Repeal of existing provisions.--The provisions contained in sections two, three, and four, of the article of the revised statutes, entitled "Of the jurisdiction of justices' courts," as amended by sections one and two, of the act concerning justices' courts, passed May 14, 1840, and the provisions contained in section 59 to 66, of the same article, both inclusive, are repealed, and the provisions of this title substituted in place thereof. But this repeal shall not affect any action heretofore commenced in a court of a justice of the peace.

The other statutory provisions relating to these courts are 2 R. S. 324 to 375, Laws of 1846, cap. 120, 140, 276. Laws of 1847, cap. 329.

Previous to the code it was usual in summonses issuing out of justice courts to require the defendant to answer to "a plea of trespass on the case," but when the code abolished the "forms of actions," it became the custom to issue summonses merely requiring the defendant" to answer" without mentioning any action or plea. The superior court held such a summons sufficient in a case appealed to that court from the marine court. Williams v. Price, 2 Sand. S. C. R. 229; but subsequently the court of common pleas for the city and county of New-York, without however, having their attention called to the case of Williams v. Price, which was

The codifiers in reporting this title, observed, that it was " intended to make such alterations only in the justices' courts acts as are rendered necessary by dispensing with the forms of action, by abolishing actions upon judgments, and by introducing a new system of pleading," and per Mason J. This title "has retained the mode provided in the revised statutes for the commencement of actions, and which is by summons, warrant, or attachment, and which three modes of commencing actions as such under the code, constitute the only manner in which actions can now be commenced in any of the courts of this State." Re Fort Plain and Cooperstown, Plank Road Co. ex parte Ransom, 3 Code Rep. 148.

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