Unwilling witness-Of the judges - As supreme court commissioners.

b. Unwilling witness. The court may issue a summons to any person within the county, whose deposition is necessary on a motion or other proceeding, to attend before a judge of the court and make such deposition, and obedience to such process may be enforced as in case of a subpoena. Laws of 1840, ch. 276, §§ 3, 4; Code, § 401, subd. 7. This provision of the Code does not apply to a party to the action. Hodgskin v. Atlantic and Pacific R. R. Co., 3 Daly, 70; 5 Abb. N. S. 73.

c. Commitment. This court has exercised the power of committing a party for the non-payment of a tax. Kahn's Case, 11 Abb. 147; S. C., 19 How. 475.

d. Inferior court judgments. This court has control over judgments of the marine and the justices' courts of New York city, when docketed with the county clerk, and may order a setoff between such judgments. Hayden v. McDermott, 9 Abb. 14.

e. Subpænas. The court has, from an early period, exercised the power of issuing writs of subpoena to persons in any part of the State. See Greenleaf's Laws of 1789, p. 262.

f. Terms, officers, etc. It may appoint its general and special terms, prescribe their duration, and alter such appointment. Code, § 35. It may appoint a crier (Code, § 39) and a clerk. Laws of 1854, ch. 198.

Section 2. Of the judges.

a. Chamber business. The judges of this court at chambers have the same powers as the justices of the superior court, which are substantially the same as those of a judge at special term. Laws of 1830, ch. 186, §§ 7, 8, 9; Devlin v. Platt, 11 Abb. 398; S. C., 20 How. 167. See 4 Stat. at Large, 584, § 22; Laws of 1828, ch. 137, § 23; Laws of 1821, ch. 72; Renard v. Hargous, 13 N. Y. (3 Kern.) 259; Laws of 1847, ch. 255. Any proceeding commenced before one judge of this court may be continued before any other judge of the court. Laws of 1840, ch. 276, §3 2, 4.

b. Delivery of books, etc. Any judge of the court may entertain proceedings to compel a delivery of the books, etc., of a public office. Devlin v. Platt, 11 Abb. 398; S. C., 20 How. 167.

c. As supreme court commissioners. The power of the judges of this court to act as supreme court commissioners is preserved to them, as it was possessed and exercised prior to the constitution of 1846. Laws of 1847, ch. 255; Renard v. Hargous, 13 N. Y. (3 Kern.) 259; Devlin v. Platt, 11 Abb. 398; S. C., 20 How. 167.

On appeal-Other judgments - Clerk - Crier - Attorneys. d. Holding other courts. The judges of this court may, under the appointment of the governor, hold circuits and special terms of the supreme court. Const., art. 6, § 12; Laws of 1870, ch. 408, 8. By an act passed in 1870, any judge of this court is authorized and empowered to hold terms of the court of general sessions in and for the city and county of New York, in case of the temporary disability or absence of the recorder or city judge. Laws of 1870, ch. 554.

ARTICLE IV.

JUDGMENT, HOW RENDERED.

Section 1. On appeal. All judgments on appeal are rendered at the general term of the court. Code, § 37. A concurrence of two judges is necessary to pronounce such judgment, and if two do not concur, the appeal must be reheard. Code, § 38. Where three judges hear an appeal, and two of them pronounce a judgment without consultation with the third, such judgment will be allowed to stand, though it is always preferable in such a case that there should be a consultation. Parrott v. The Knickerbocker Ins. Co., 38 How. 508; S. C., 8 Abb. N. S. 234; 1 Sweeny, 533.

Section 2. Other judgments. All other judgments must be given at the special term. Code, § 37.

ARTICLE V.

OFFICERS.

Section 1. Clerk. Until the year 1854 the clerk of the city and county of New York was clerk of this court, but in that year the legislature authorized the court to appoint a clerk, who performs the duties pertaining to that office. Laws of 1854, ch. 198. See 1 E. D. Smith, Preface.

Section 2. Crier. The court has power also to appoint a crier, who holds his office during the pleasure of the court, and receives a salary fixed by the supervisors of the city of New York, and is paid out of the county treasury. Code, § 39.

Section 3. Attorneys. Attorneys, when admitted to practice by the supreme court, are entitled to all the privileges of this court. Laws of 1847, ch. 280, § 75; 4 Stat. at Large, 577.

a. Appointment. The court has power to appoint general and special terms thereof, to prescribe their duration, and to alter such appointment from time to time. Code, § 35.

b. Rooms, etc. The supervisors of the county of New York should provide the court with rooms, attendants, fuel, lights, and stationery suitable and sufficient for the transaction of its business. In case the sheriff neglects to do so, the court may order the sheriff to provide the same, and his expenses become a county charge. Code, § 28.

c. Number of judges. A general term may be held by any two of the judges of the court. Code, § 36.

d. Jurisdiction. The general term alone has power of rendering judgment in cases on appeal. Code, § 37.

The construction which has been given to section 37 of the Code is, that the general term should exercise only an appellate jurisdiction, except in the cases provided for by section 265 of the Code. Matter of Walker, 2 Duer, 655.

Section 2. Special term.

a. By whom held. The special term must be held by a single judge. Code, § 36.

b. Appointment, rooms, etc. The provisions already noticed respecting the appointment of terms, and the providing of rooms and accommodation for the general term, are equally applicable to the special term. Code, §§ 28, 35.

c. Jurisdiction. All judgments, except upon appeal, must be given at the special term. Code, § 37.

ARTICLE VII.

REMOVAL OF CAUSES TO SUPREME COURT.

Section 1. What actions may be removed. Any action brought under subdivision 2 of section 33 of the Code, and pending in the court of common pleas, may be removed into the supreme court, and the place of trial may be changed by the supreme

Proceedings on removal- Supreme court rules.

court, as if the action had been commenced in that court. Code, $33, subd. 2.

Section 2. Proceedings on removal.

a. How removed. The removal and change of place of trial are effected by an order made in the supreme court on motion; and the cause is deemed to be removed into the supreme court when a certified copy of such order is filed in the office of the clerk of the court of common pleas. Code, § 33, subd. 2. On a motion to remove a cause into the supreme court, the papers should be entitled in the "Court of Common Pleas." Miller v. Dows, 2 How. 98.

b. Proceedings after removal. The supreme court proceeds in such action in the same manner as though it had been originally commenced in that court; and the clerk with whom the order of removal is filed is bound to deliver forthwith to the clerk of the county, in which, by such order, the trial is directed to be had, to be filed in his office, all process, pleadings and proceedings relating to such cause. Code, § 33, subd. 2.

c. Removal discretionary. The power of the supreme court to remove into itself a cause pending in the common pleas is a discretionary power, and not one giving a party applying therefor a strict right. Campbell v. Butler, 4 Abb. 55.

d. Removal of special proceedings. No writ of habeas corpus or certiorari shall be allowed, whereby any special proceeding may be removed, before a final decision in such proceeding, from the court of common pleas into the supreme court. Laws of 1844, ch. 32; Devlin v. Platt, 20 How. 167; S. C., 11 Abb. 398.

ARTICLE VIII.

RULES.

Section 1. Supreme court rules. The rules of the supreme court control the practice of this court, so far as they are applicable thereto. A convention of the general term justices of the supreme court, the chief judges of the superior courts of cities, the chief judge of the New York common pleas and of the city court of Brooklyn, are authorized to meet every two years at the capitol in Albany, to revise, alter, abolish and make rules which are binding upon all courts of records, so far as applicable to the practice thereof. Laws of 1870, ch. 408, § 13.

Section 2. Further rules. The various courts and general terms are authorized to make such further rules for the transaction of business before them respectively, not inconsistent with those adopted in convention, as they in their discretion may deem necessary. Sup. Ct. Rules, 96.

ARTICLE IX.

APPEALS.

Section 1. Appeals from. Appeals from the general term of this court are taken directly to the court of appeals. Code, § 11. Certain special proceedings, however, may be removed by certiorari and reviewed by the supreme court. 2 R. S. 573 (593), § 69. But no proceedings can be removed until there has been a final determination in the matter. Id. Laws of 1844, ch. 32; Devlin v. Platt, 20 How. 167; S. C., 11 Abb. 398.

Section 2. Appeals to. Appeals from the general term of the marine court of the city of New York, or from a justice's court of that city, lie exclusively to the general term of this court. Code, §§ 34, 351, 352. All the jurisdiction and powers of the superior court as formerly exercised by it in case of appeals from the ma rine and district courts are now vested in this court. Wood v. Kelly, 2 Hilt. 334.

As to all cases appealable from the marine court the court of common pleas is the court of last resort, unless it should allow an appeal from its decision to the court of appeals. Leland v. Smith, 3 Daly, 309. Its orders in cases of contempts are conclusive. Ib.