Judges of the superior court of New York-Judgments.

any order that can be made out of court, without notice, except to stay proceedings after verdict. Code, § 401.

In actions pending in the supreme court they may, within their counties, perform all the duties of a judge of this court at chambers. Code, § 403.

They may appoint a guardian ad litem for an infant party in any action. Code, § 115.

And order a further account when the one delivered is defective. Code, § 158.

They may conduct proceedings supplementary to execution upon a judgment of any court. Code, § 292.

But a county judge before whom such proceedings are pending has no power to try them, pending an appeal. Bank of Genesee v. Spencer, 15 How. 412.

Judges of the superior court of New York may perform the duties of a justice of the supreme court out of term. Laws of 1828, ch. 137, § 23.

Judges of common pleas of New York have the same powers. 3 R. S. (5th ed.) 309. Laws 1830, ch. 186, § 9.

Justices of the superior court of Buffalo. Laws of 1854, ch. 96, §§ 25, 26; Laws of 1870, ch. 313.

The same powers have been conferred upon the recorders of Albany, Hudson, Troy and Oswego (2 R. S. 217, 218; Laws of 1848, ch. 320; Laws of 1848, ch. 86; Laws of 1848, ch. 374, § 21), and upon the city judge of Brooklyn so far as relates to strictly local matters. Laws of 1870, ch. 470, § 13. See Laws of 1850, ch. 102.

And local officers elected to discharge the duties of county judge. Seymour v. Mercer, 13 How. 564.

These laws have been declared constitutional by the court of appeals. Hayner v. James, 17 N. Y. (3 Smith) 316. But see, as to proceedings supplementary to execution, Cushman v. Johnson, 13 How. 495; S. C., 4 Abb. 256.

ARTICLE IV.

JUDGMENTS.

Section 1. Early court. In the act of establishment of this court authority was given in civil, criminal and mixed actions, as fully and amply as that possessed by the courts of king's

Judgments - Before and under constitution of 1846-Present practice.

bench, common pleas, or exchequer of England, and although there is no particular record, yet it is to be presumed that the judgments of this court at that time had a like effect and were enforced in a similar manner as those of the courts upon which this was modeled. See 2 Paine & Duer's Pr., "Appendix;" 1 E. D. Smith, "Introduction."

Section 2. Before 1846. By the Revised Statutes it was declared that "all judgments thereafter rendered by a court of record shall bind and be a charge upon the lands, tenements, hereditaments, real estate and chattels real of every person against whom such judgment shall be rendered," but that it should cease to bind such estate after ten years. 2 R. S. 359, § 3.

Provision was also made by statute for the docketing, canceling and enforcing of judgments of the court which it is unnecessary to detail in this place. See 2 R. S. 359, et seq.

Section 3. Under constitution of 1846. Under the constitu tion of 1846 no material alteration was made in the practice respecting judgments except those effected by the Code, which is noticed in the following section.

Section 4. Present practice. The effect of the judgments of this court is the same as formerly, but the manner of entering them is somewhat changed by the Code.

Judgments upon issues of law, or of fact, or upon confession, or upon failure to answer (except where the clerk is authorized to enter the same by the first subdivision of section 246 and by section 384, and except where it may be given at general term as provided in section 265) shall, in the first instance, be entered upon the direction of a single judge, or report of referees, subject to review at the general term, on the demand of either party, as provided by the Code. Code, § 278. But a judge at chambers cannot direct a judgment except upon a frivolous answer, demurrer or reply. Aymar v. Chace, 12 Barb. 301; S. C., Code R. N. S. 330.

The concurrence of a majority of the judges holding a general term is necessary to pronounce a judgment. Code, $ 19. A judgment was held valid where two judges who heard the argument and one who did not, constituted the court where a judgment was pronounced, the one not present at the argument taking no part in the decision. Corning v. Slosson, 16 N. Y.

(2. Smith) 294.

As the law now stands two of the justices of the general term

Officers Under constitution of 1846.

Van

may hold the court where the third is incompetent to sit. Rensselaer v. Witbeck, 3 Lans. 498. But, in such a case, both justices must concur in pronouncing any judgment.

The clerk of the court keeps a judgment book (Code, § 279) in which judgments are entered specifying the relief granted. Code, § 280. Section 282 of the Code specifies the manner of docketing judgments and their effect. Code, § 282.

ARTICLE V.

OFFICERS.

Section 1. Early court. The officers were such as were recognized in the English courts, from which the system was copied. Section 2. Before 1846.

Clerk. Under the Revised Statutes the clerk was appointed by the court, and held office for three years. 1 R. S. 108,

State reporter. A State reporter was appointed by the lieutenant-governor, the chancellor and chief justice, and held office during their pleasure. Ib.

Attorneys. Counselors, solicitors and attorneys were appointed and licensed by the court under rules and regulations prescribed by the court, and they might be removed by the court, but subject to such removal they held office for life. Ib. Sheriff. The sheriff was elected for three years by the electors of their respective counties. 1 R. S. 112. He appointed his own deputies and assistants. 1 R. S. 116.

Coroners. Four coroners were elected in the same manner and for the same term. 1 R. S. 112.

Commissioners of deeds were appointed by the local authorities. 1 R. S. 109. Not less than two nor more than four in each town of the State, who held office for four years. Ib.

Notaries public were appointed for the various cities and counties of the State by the governor and senate. 1 R. S. 98. Section 3. Under constitution of 1846.

Clerk. Under the constitution of 1846 the office of clerk as it existed prior to that time was abolished, and the clerk of the court of appeals was made ex officio clerk of the supreme court. Const. of 1846, art. 6, § 19. And the clerks of the several counties were ex officio clerks of the supreme court in their respective counties. Ib. When the clerk was out of the county he could

Officers Under constitution of 1846.

only act by deputy, and any act of the deputy was presumed to be performed in the absence of the clerk. Lucas v. Trustees of Second Baptist Church and Society of Village of Geneva, 4 How. 353. No priority could be gained by filing papers out of office hours. Wardell v. Mason, 10 Wend. 573. But judgments could not be entered or docketed out of legal office hours. Old Rules, 9.

Crier. The county judge of each county appointed a crier for all courts of record within his county who held office during the pleasure of the county judge. He received the same compensation and in the same manner as justices of sessions. Laws of 1855, ch. 530. It is their duty to attend all sessions of the court in the county, to make proclamation at the opening and adjournment of the court, and to call parties on recognizances, attachments, etc.

Reporter. By the constitution of 1846, all judicial decisions were declared to be free for publication by any person. Const. of 1846, art. 6, § 22.

Attorneys. The constitution provided that any male citizen of the age of 21 years, of good moral character, and who possessed the requisite qualifications of learning and ability, should be entitled to admission to practice in all the courts of the State. Const. of 1846, art. 6, § 8.

The legislature under this provision authorized the supreme court to regulate the admission of attorneys. Laws of 1847, ch. 280, $75.

Accordingly the supreme court provided for the admission of attorneys, upon examination in open court, upon the various branches of law and practice. There were certain prerequisites to an examination which might be proved by the applicant's affidavit, to wit, that he was a citizen of the United States, that he was 21 years of age, and that he was a resident of the district in which he applied. He must also show by the certificate of a counselor of the court, or other reputable person, that he was a person of good moral character. Old Rules, 2. If the applicant was from another State he must comply with these provisions, or produce a certificate from a judge of the highest court of original jurisdiction in that State, to the effect that, for three years immediately preceding, such applicant had practiced as an attorney in such court and was in good standing as such. Ib.

Officers.

Upon admission applicants signed the rolls and took the oath of office. Ib.

The legislature also provided for the granting of diplomas by certain law schools, which admitted qualified persons to practice. Laws of 1860, ch. 187, § 20.

Sheriff. No change was made under the constitution of 1846 touching the office of sheriff.

Section 4. Present officers.

Clerk. Clerks of the several counties are clerks of the supreme court, with such powers and duties as may be prescribed by law. Const., art. 6, § 20.

The office hours of the clerk are, in the city of New York, from nine o'clock in the forenoon to four o'clock in the afternoon, in each day of the year except Sundays and such days as are declared by law to be holidays, and in each of the other counties of the State between the 31st of March and the 1st of October from eight o'clock in the forenoon to six o'clock in the afternoon, and between the 30th day of September and the 1st day of April from nine o'clock in the forenoon to five o'clock in the afternoon. 2 R. S. 285, § 54; amended by Laws of 1860, ch. 276.

The county clerk or his deputy, of the county in which a general term is held, must attend such term and act under the direction of the court. Laws of 1870, ch. 408, § 11.

He receives in every trial, from the party bringing it on, one dollar; on entering judgment, by filing transcript, six cents; on entering judgment, fifty cents, except in courts where the clerks are salaried officers, and in such courts one dollar. He shall receive no other fee for any service whatever in a civil action, except for copies of papers, at the rate of five cents for every hundred words. Code, § 312.

The provisions respecting deputies and in filing of papers with the clerk, noticed under section 3 of this article, are equally applicable now, but by the amendment to a former rule, judgments can be filed and entered or docketed in the clerk's office, during legal office hours, and at no other time. Rule 12. See France v. Hamilton, 26 How. 180.

Crier. No change has been made in the provision respecting criers, except that the crier for courts of any county shall attend the general term when the same is held within his county. Laws of 1870, ch. 408, § 11.