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of issues of law or fact, and as many more as the county judge shall appoint, shall be held in each year at the places in the counties respectively designated by statute for holding county or circuit courts, on such days as the county judge shall from time to time appoint, and may continue as long as the court deem necessary.
Notice of such appointment shall be published in the State paper at least four weeks before any such term, and also, in a newspaper, if any, printed in the county; so many of such terms as the county judge shall designate for that purpose, in such notice, may be held for the trial of issues of law, and hearing and decision of motions, and other proceedings at which no jury shall be required to attend.
A doubt is said to exist as to the right of the court of sessions to sit at the same time with the general terms of the county courts. See judiciary act (Laws of 1847, p. 332, s. 45). It is provided by statute, that the court of sessions of the city and county of Albany, may be held at the times and places at which the general terms of the county courts are by law appointed to be helh, and may continue as long as the court deem necessary. (Laws of 1849, p. 111, cap. 76, and see Laws of 1851, pp. 906, 825, 822.)
§ 32. [36, 37, 38.]
(Amended 1849.) Jurors.--Jurors for the county courts and courts of sessions, shall be drawn from the jury box of the county, and summoned in the same manner as for the trial of issues at a circuit court.
The rules of the supreme court are applicable to county courts.
Of the Superior Court and Court of Common Pleas, in the city of New-York, and the Mayors' and Recorders' Courts in other cities.
34. Common Pleas for New-York to review certain judgments.
§ 33. [39.] (Amended 1849-1852.) Jurisdiction.-The jurisdiction of the superior court of the city of New York, of the court of common pleas for the city and county of New York, of the mayors' courts of cities, and of the recorders' courts of cities, shall extend to the following actions:
1. To the actions enumerated in section one hundred and twenty-three, and one hundred and twenty-four, when the cause of action shall have arisen, or the subject of the action shall be situated, within those cities respectively:
2. To all other actions where all the defendants shall reside, or are personally served with the summons, within those cities respectively, or where one or more of several defendants, jointly liable on contract, reside, or are personally served with the summons, within those cities respectively; except in the case of mayors' and recorders' courts of cities, which courts shall only have jurisdiction where all the defendants reside within the cities in which such courts are respectively situated. The supreme court may remove into that court any action brought under this subdivision and pending in the superior court, or
court of common pleas for the city and county of New York, and may change the place of trial therein, as if such action had been commenced in the supreme court; such order for removal and for change of place of trial to 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 superior court, or of the 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 with whom such order is filed, must 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. And any action or proceeding pending in any mayor's or recorder's court, in which the judge is for any cause incapable of acting, may by such court be transferred to the county court of the county; and thereupon the papers on file in the mayor's or recorder's court shall be transmitted to the county court; which shall thenceforth have jurisdiction of such action or proceeding.
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 court upon the authority of 2 R. S. 313, ss. 15, 16, 17, and this section 33, Hurlbut J. held that the supreme court had power only to change the place of trial, and that this section was entitled only to that construction, and he vacated the order for removing the cause. 2 Code Rep., 50.
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 of the superior court; and the pres
ent surrogate of the city of New-York has repeatedly, as we are informed, 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; 1 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 jurisdiction of the superior court; but that court has decided that it will not sanction any attempt by fraud and misrepresentation to bring a party within the jurisdiction of this court. Carpenter v. Spooner, 2 Code Rep. 140. 2 Sand. S. C. R., 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 having 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.
6. For the admeasurement of dower in 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 cognizance of the matters enumerated in section 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. Laws of 1852, p. 39. As to the common pleas for the city and county of New-York, see 2 R. S. 272, 293, 317. Laws of 1852, p. 39.
By laws of 1845, p. 250, it is enacted that the court of common pleas for the city and county of New-York is to have jurisdiction of judgments upon recognizances docketed with the county clerk under laws of 1844, see Gildersleeve v. The people, 10 Barb. S. C. R. 35.
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. Laws of 1851, p. 907.
As to the mayor's court of Troy, Laws of 1848, p. 92. Repealed. Laws of 1849, p. 165, s. 6.
As to the recorder of the city of Troy. By laws of 1849, p. 164, s. 4, authority is conferred on the recorder of Troy to exercise the power of a justice of the supreme court at chambers; but the section has been held to be unconstitutional. Griffin v. Griffith, 6 Pr. R. 428.
As to the recorder's court of Buffalo, see 2 R. S. 302, s. 63. p. 481, cap. 362. Laws of 1850, p. 208.
Laws of 1848,
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, p. 148.
Mayor's court of Rochester, abolished, see laws of 1849, p. 435.
The second subdivision of this section prior to the amendment of 1852, did not contain the words "or where one or more of several defendants, jointly liable on contract, reside or are personally served with the summons within those cities respectively;" and where, before the amendment of 1852, in an action in the superior court against two defendants, one a resident and the other a non-resident of the city of New-York, and the summons had been served on the resident defendant only, who appeared and answered, it was held that the superior court had no jurisdiction of the action, and that the defendant who appeared and answered might take the objection to the jurisdiction at any stage of the action. Delafield v. Wright, 1 Code Rep. N. S. 123.
In the matter of De Angelis, 1 Code Rep. N. S., 349, it was held by Edmonds, J. that the court of common pleas for the city and county of New-York had no jurisdiction to award as to the custody of children pending an action in such court of common pleas for a divorce of the parents of such children; and he doubted if such court of common pleas had any jurisdiction of an action for a divorce or separation.
It has been doubted, and certainly 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 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 v. 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. xiv. 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. vi. sec. 3.] Law and equity still remained distinct. By the same constitution [art. vi. 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. xiv. 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. See, however, art. vi., s. 5, of the constitution.
If the constitution did authorize the legislature to invest 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. Chancellor Walworth, in Ames v. Blunt, 2 Paige, 95, says the powers of this court