Removal of causes into the superior court In general.

to remove into that court a cause pending in the superior court, is a discretionary power, and not one giving a party applying therefor a strict right. It should only be exercised upon good cause shown. Campbell v. Butler, 4 Abb. 55.

e. Motion papers.

On the motion for removal the papers should be entitled in the court from which the removal is sought. Miller v. Dows, 2 How. 98.

Section 2. Removal of causes into the superior court.

a. Causes to be transferred. It is provided that all civil suits at issue at the time of the passage of the Code, that, after the 1st day 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 be transferred to the superior court of that city. Code, § 47.

The authority conferred by this provision to transfer equity causes to the superior court is confined to equity cases commenced prior to July, 1848, and does not extend to actions under the Code where the relief sought is of an equitable nature. Giles v. Lyon, 4 N. Y. (4 Comst.) 600; S. C., 1 Code R. N. S. 257.

b. How transferred. Such actions are to be transferred by an order of the supreme court, or by the judge holding the special term at which the cause was to have been heard. Code, § 47.

c. After removal. The causes, on removal, are to be heard at the general term of the superior court (Code, § 47), and that court has full jurisdiction over every cause so transferred, and can exercise the same powers in relation thereto as the supreme court might have exercised if the suit had remained therein. Code, § 48.

ARTICLE XI.

RULES.

Section 1. In general. The transaction of business before this court is regulated by the rules of the supreme court, so far as they are applicable to this court. Laws of 1870, ch. 408, § 13. These rules were adopted by a convention of the general term justices of the supreme court, the chief judges of the superior courts in cities, the chief judge of the New York common pleas, and the chief judge of the city court of Brooklyn; and a con

Appeals to the court of appeals.

vention of these judges is to be held every two years hereafter, to revise, alter, abolish or make rules, which shall be binding upon this court so far as they are applicable to its practice. Ib. But, in addition to these rules, the superior court is authorized to make other rules, adapted to the necessities of its practice, as it may, in its discretion, deem necessary. The rules so adopted, however, must not be inconsistent with the general rules of the supreme court as adopted in convention. Supreme Court Rules, 96.

The general term may make further rules for the transaction of business before it. Ib.

ARTICLE XII.

APPEALS.

Section 1. Appeals to the court of appeals. Every appeal from the general term of the superior court must be taken directly to the court of appeals. Code, § 11. This includes judgments in suits transferred from the supreme court to the superior court. Code, § 50.

Section 2. Appeals to the superior court. Formerly the superior court had jurisdiction of appeals from the marine and the district courts of New York city (Code of 1848, § 302), but it has no longer any appellate power in such cases, as all appeals from those courts are now heard in the court of common pleas. Code, $ 351, 352; Wood v. Kelly, 2 Hilt. 334; Hawkins v. Mayor, etc., of New York, 5 Abb. 344.

Section 3. Proceedings reviewed in supreme court. In case proceedings are had on a writ of habeas corpus granted by a justice of this court, sitting as a supreme court commissioner, such proceedings may be removed by certiorari into the supreme court, to be there examined and corrected. 2 R. S. 573 (593), § 69; Lemmon v. The People, 26 Barb. 270; S. C. affirmed, 20 N. Y. (6 Smith) 562.

CHAPTER X.

COMMON PLEAS OF NEW YORK CITY.

ARTICLE I.

ORGANIZATION.

Section 1. History of the court. The first record we have of a court of common pleas in the city of New York, is found in the charter granted to that city by Dongan, governor of the Province of New York, in 1686, but as that court was merely the continuation of the tribunal then in existence, a brief sketch of its history will not be out of place here, and for further information the student is referred to the "History of the Court of Common Pleas, with an account of the judicial organization of the State," by Hon. Chas. P. Daly. 1 E. D. Smith, Introduction.

In the year 1653, there was established by the Dutch, at New Amsterdam, the courts of the Schout, Burgomasters and Schepens, which had the two-fold function of council or board for the management and regulation of municipal affairs, and of a court of justice with almost unlimited jurisdiction, both civil and criminal. When the colony passed into the hands of the English in 1664, the name of the city was changed to New York, but the municipal and judicial organization was not interfered with until 1665, when Nicolls, who had assumed the government as the representative of James, Duke of York, issued a proclamation on the 12th of June of that year, abolishing the form of government established by the Dutch, and declaring that the government of the city should be intrusted to persons "known thereafter as the mayor, aldermen and sheriff, according to customs of the corporations in England." These officers were declared to be a body politic and corporate, with power to administer the affairs of the city according to law. They convened shortly afterward, re-appointed the former clerk of the court of Schout, Burgomasters and Schepens, and changed its name to the "mayor's court." These officers, the mayor taking the place of Burgomaster, the aldermen that of Schepens, and the sheriff corresponding to the Schout, were appointed by the acting governor.

History of the court.

For the period of a little more than a year, viz., from August, 1673, to October, 1674, during which time the Dutch again had possession of the city, the court was re-organized under its old name, but with that exception the mayor's court remained substantially under its original organization, regulating municipal affairs and exercising judicial functions, both in civil and criminal matters, until the year 1684, when a recorder was appointed, who took his seat with the court. The next important change which occurred, was under the Dongan charter in 1686, when the mayor, recorder and aldermen, or any three of them (of whom the mayor or recorder was required to be one), were authorized to hold, within the city, a court of common pleas, for the trial of all civil actions. Thus the duties of these officers in civil actions was separated from their legislative powers, and also from their powers as criminal magistrates. The court, however, continued to be called by the familiar title of the mayor's court until 1821, when its name was changed, by act of legislature, to "The Court of Common Pleas for the City and County of New York." The same act made provision for a first judge to be appointed by the council of appointment, and who should hold office during good behavior, or until sixty years of age. Laws of 1821, ch. 72. But by the constitution adopted one year later, the power of appointment was vested in the governor, and the term of office was changed to five years.

By the act of 1821 it was the especial duty of the first judge to hold the court, and he was authorized to hold it without the mayor, recorder and aldermen, although they were still at liberty to sit in it. Laws of 1821, ch. 72.

The clerk of the city and county of New York was, by virtue of his office, clerk of this court. 2 R. S. 216 (225), § 24.

In 1834 an associate judge was added to the court, with all the powers of the first judge. Laws of 1834, ch. 94, § 1.

A few years later an additional associate judge was created, with the same powers as the other two (Laws of 1839, ch. 116, § 2), and thus constituted the court remained until the adoption of the constitution of 1846.

That instrument provided that the court should remain under its then existing organization until otherwise directed by the legislature (Const. of 1846, art. 14, § 12), and that its judicial officers should be elected at such times and in such manner as the legislature should direct. Const. of 1846, art. 6, § 18.

Present organization.

By an act passed the following year it was provided that an election of three judges for this court should be had in June of that year, whose terms of office (to be determined by lot) should expire respectively at the end of two, four and six years, and that the election of judges thereafter should be for the term of six years. Laws of 1847, ch. 255.

Section 2. Present organization.

a. Number of judges. By the 6th article of the constitution, as adopted in 1869, the court of common pleas of the city of New York is continued, and is hereafter to be composed of the three judges in office at the time of the adoption of that article, and their successors, and three additional judges. A chief judge is to be appointed by the justices of the court, from their own number, who is to act as such during his official term. Const., art. 6, § 12.

b. Election of judges. The judges of this court are to be chosen by the electors of the city of New York. Const., art. 6, 13.

Provision was made for the election of the three additional judges, under the direction of the legislature. Const., art. 6, § 24; Laws of 1870, ch. 86, § 2.

c. Term of office. They hold their office for fourteen years from and including the first day of January next after their election, but no person is qualified to act as such judge longer than until and including the last day of December next, after he shall be seventy years of age. Const., art. 6, § 13.

d. Compensation. The compensation of the judges of this court is to be established by law, and it cannot be diminished during their term of office. Const., art. 6, § 14. They are not allowed to receive fees for any service. Code, § 35.

e. Certificate of age, etc. Each judge is required, within ten days after entering upon his duties, to make and sign a certificate, which shall be filed in the office of the secretary of state, setting forth his age and the time when his official term will expire. Laws of 1870, ch. 86, § 8.

f. Vacancies, how filled. Successors to those whose terms of office expire by the effluxion of time or the disability of age shall be chosen at the general election preceding the expiration of such term. Laws of 1870, ch. 86, § 9. Vacancies occurring from any other cause are filled at the next general election, happening not less than three months after the vacancy occurs; and