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change the place of trial 10 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, bad 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 courte upon the authority of 2 R. S. 313, ss. 15, 16, 17, and this sub. of seo. 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
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 latter 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 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,
i Code Rep. 95, Cashmere v 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 jurisdic. tion of the superior court, but that court has decided that it will not sanction any at. tempt by fraud and misrepresentation to bring a party within the jurisdiction of this
Carpenter v. Spooner, 2 Code Rep. 140. 2 Sand. S. Code 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 baving 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, 8.31,) 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.
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 coguizance of the matters enumerated in sec. tion 31 of the judiciary act of May 1847.
For the other statutory provisions, regulating the superior court of the city of New-York, see 2 R. S. 272, 317. Laws of 1847, p. 279, 560. Laws of 1848, p. 497. Laws of 1849, p. 487, 168. Laws of 1851, p. 8.
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. Laws of 1848, p. 481, cap. 362. Laws of 1850, p. 208.
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, Mayor's court of Rochester, abolished, see laws of 1849, p. 435
It has been doubted, and certaivly with some show of reason, whether the superior court can lawfully exercise any equitable jurisdiction. The term equitable is here
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 ils 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 constitutiou of 1846, (art. 14, sec. 8,) the offices of chancellor and the other officers of the court of charicery 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 ihese 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 ernpow. ered 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
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 twenly days, appoint general and special terms of those courts, respectively, and prescribe 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
Ø 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. M'Cannell
$ 38.  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 bis 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 charler 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. Huf 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