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§ 13. (Am'd 1851, 1852, 1858, 1859, 1862, 1863, 1865, 1869.) Terms. Preference of causes.

There shall be four terms of the court of appeals in each year, to be held at the Capitol, in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the last Tuesday of September, and continued for as long a period as the public interests may require. But the judges of said court may, in their discretion, appoint one of said terms in each year to be held in the city of New York. Additional terms shall be appointed and held at the same place by the court when the public interest requires it. The court may, by general rules, provide what causes shall have a preference on the calendar. On a second and each subsequent appeal to the court of appeals, or when an appeal has once been dismissed for defect or irregularity, the cause shall be placed upon the calendar as of the time of filing the first appeal, and may be noticed and put on the calendar for any succeeding term; and whenever, in any action or proceeding in which the people of this State, or any State officer, or any board of State officers, is or are sole plaintiff or defendant, an appeal has been or shall be brought from any judgment or order for or against him or them, in any court, such appeal shall have a preference in the supreme court and in the court of appeals, and may be moved by either party out of the order on the calendar.

And actions in which one of two or more plaintiffs or defendants shall have died pending the action, and the pendency of the action prevents a final settlement of the estate of the deceased party, shall be preferred on the calendar.

For other preferred cases see Rule XIII. Court of Appeals, post.

§ 14. (Am'd 1849, 1851, 1867.) Judgment. Rehearing. Opinions. The concurrence of five judges is necessary to pronounce a judgment. If five do not concur, the case must be reheard. But no more than two rehearings shall be had; and if on the second rehearing five judges do not concur, the judgment shall be affirmed.

When five of the judges do not concur, and a rehearing of the case is ordered, the judges shall file the opinions read by them with the reporter of the court, but such opinions shall not be published. No person other than the judges of the court, the reporter of the court, or the counsel or attorney of either of the parties to

the action shall have access to, or a copy of, the said opinions, but such counsel or attorney may have access to and a copy thereof.

a. This section does no more than declare the common law rule (Mason v. Jones, 3 N. Y. 375; and see Goddard v. Coffin, Davies' U. S. Dist. Rep. 381).

b. Affirmance.-A judgment of affirmance, in the absence of dissent, is an affirmance of the precise proposition decided by the court below (Green v. Clark, 13 Barb. 57). An affirmance, upon an equal division of the court, merely determines the particular case, and leaves the questions involved in it open for consideration in any future case in which they may arise (Morse v. Goold, 11 N. Y. 281; The People v. Mayor of New York, 25 Wend. 252).

c. Not to go behind decision. Where judgment is pronounced in open court without any dissent at the time, neither party can attack the judgment on the ground of what may have taken place among the judges in private (Mason v. Jones, 3 N. Y. 375; Oakley v. Aspinwall, ib. 547).

15. Sheriff to provide rooms, &c.

If, at a term of the court of appeals, proper and convenient rooms, both for the consultation of the judges and the holding of the court, with furniture, attendants, fuel, lights, and stationery, suitable and sufficient for the transaction of its business, be not provided for it in the place where by law the court may be held, the court may order the sheriff of the county to make such provision, and the expense incurred by him in carrying the order into effect shall be a county charge.

§ 16. (Am'd 1851.) Court, where held. Adjournment.

The court of appeals may be held in other buildings than those designated by law as places for holding courts, and at a different place, in the same city, from that at which it is appointed to be held. Any one or more of the judges may adjourn the court, with the like effect as if all were present.


Of the Supreme Court, Circuit Courts, and Courts of Oyer and




Existing statutory provisions, as to terms, &c., repealed.

General terms.

Judgment, how given.

20. Special terms, &c.

21. Circuit and oyer and terminer together.

22. Times and places of holding courts.

23. Extraordinary terms, &c.

24. Courts, where held.

25. Publication of appointment.

26. Inability of judge.

27. Business out of court. Transfer of business.


Rooms, &c., how furnished.

§ 17. (Am'd 1849.) Terms.

All statutes now in force, providing for the designation of the

general and special terms of the courts, and courts of oyer and

times and places of holding the supreme court, and the circuit terminer, and of the judges who shall hold the same, are repealed from and after the first day of July, 1848; and the order of the supreme court adopted July 14, 1847, prescribing the times and places of holding the general and special terms of the court, and the circuit courts, and courts of oyer and terminer, during the residue of the year 1847, and for the years 1848 and 1849, and assigning the business and duties thereof to the several judges of the court, is, from and after the first day of July, 1848, abrogated, and the provisions of this title are substituted in place thereof.

See now laws, 1870, ch. 408; and see Northrup v. The People, 37 N. Y. 203.

a. Jurisdiction of the Supreme Court.-The supreme court has all the powers of the supreme court and the former court of chancery (Onderdonk v. Mott, 34 Barb. 106; Myers v. Rasback, 4 How. 83; Myers v. Borland, id.; and see ante p. 13, b., and the constitution, art. vi. secs. 3-6; 2 R. S. 259, s. 1; ib. 234, s. 60; Laws 1847, p. 323, s. 16; Laws 1848, p. 282; Laws 1849, p. 27; ib. p. 117; ib. p. 150; Laws 1850, p. 20; ib. p. 9; Laws 1851, p. 308; Laws 1852, p. 591; Laws 1853, p. 526).

b. The supreme court has jurisdiction of an action in the nature of a suit in equity where the amount in dispute is less than $100 (Laws 1862, p. 859, s. 39; Laws 1863, p. 664, s. 2; and see Mallory v. Norton, 21 Barb. 424; Braman v. Johnson, 26 How. 27, and Sarsfield v. Vaugner, 15 Abb. 65; 38 Barb. 444, rev's'g S. C. 14 Abb. 297; and Shepard v. Walker, 7 How. 46; Cobine v. St. John, 12 How. 337, 576; Marsh v. Benson, 34 N. Y. 358; 11 Abb. 241 and note; Durham v. Willard, 19 How. 425). In Sarsfield v. Vaugner (supra) the value of the property in dispute was less than $50.

The supreme court may decree the cancellation of a void mortgage which is a cloud on property out of the State (Williams v. Ayrault, 37 N. Y. 444). It may determine the validity of any actual or alleged devise or will of real estate (Laws 1853, p. 526), and may vacate the entry of satisfaction of a final decree of the court of chancery, entered prior to 1846. It has power to authorize the leasing or sale and conveyance of the real estate of benevolent, charitable, scientific, missionary societies or orphan asylums (Laws 1861, ch. 58). It has the power to exercise such control over every proceeding in it, as to protect every person interested from injustice and fraud, and will not allow itself to be made the instrument of wrong (Lowber v. Mayor of N. Y. 26 Barb. 262; Barton v. Butts, 32 How. 456).

An action upon an award may be brought in the supreme court, although the submission provides for judgment in the county court (Burnside v. Whitney, 21 N. Y. 148).

An application to sell the real estate of a religious corporation may be made to the supreme court (Wyatt v. Benson, 23 Barb. 327; 4 Abb. 182. See Code, s. 30, subd. 9, and see supreme court rule regulating the application, in Appendix). Its jurisdiction, in the matters of street openings in the city of New York, is exercised as a court, and not as a tribunal of inferior jurisdiction (In re Canal Street, 12 N. Y. 406; Re Seventh Ave. 29 How. 180). It cannot by certiorari arrest a special proceeding instituted before a judge of another court, prior to any final determination of the matter (Devlin v. Pratt, 11 Abb. 398.) The whole power of the court to order the sale of the lands of infants is derived from the statute (Onderdonk v. Mott, 34 Barb. 106).

a. Transfer of causes to Supreme Court.-As to the transfer of causes to the supreme court from the New York superior court and court of common pleas, see section 33, post; from the superior court of Buffalo, see Laws 1857, vol. 1, p. 755; and from county courts, see section 30, subd. 13 post; and in actions or proceedings in the city court of Brooklyn, or before the city judge of Brooklyn, in which the said city judge shall have acted as attorney or counsel, or shall be interested, or in which he would be excluded as a juror by reason of consanguinity or affinity to either party, may be transferred to the supreme court and tried in the county of Kings (Laws 1861, ch. 86).

¿. Conciliation.-Transfer of causes from courts of conciliation (Laws 1865, ch. 556).

c. Circuits.—By Laws of 1847 (p. 326, s. 22), these courts have the same powers, and jurisdiction, as the circuit courts then existing; and all laws relating to the former circuit courts were made applicable to the present circuit courts. Hardly any step, except to try or refer, can be taken at the circuit (Mann v. Taylor, 1 Code R. N. S. 383); and except to grant a new trial on the judge's minutes (see Moffat v. Ford, 14 Barb. 577).



d. In what cases.-A cause may be removed from a State court into a U. S. circuit court. (1) If the suit is against an alien; (2) by a citizen of the State in which the suit is brought against a citizen of another State where the sum or value in dispute exceeds $500. But no district or circuit court can take cognizance of any suit to recover the contents of any promissory note or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court, to recover the said contents, if no assignment had been made. The manner of removal is by filing, at the time of entering an appearance in the State court, a petition and bond on behalf of the petitioner to enter process at the next term of the circuit court (1 U. S. Stat. at Large, 78; and Wood v. Matthews, 2 Blatchford C. C. Rep. 370; Patrie v. Murray, 29 How. 312; 43 Barb. 323; Benjamin v. Murray, 28 How. 193; Jones v. Seward,

41 Barb. 269; 17 Abb. 377; Ayres v. West. R. R. Co. 32 How. 351. See acts of Congress of 1863, 1866, 1867).

The value in dispute is determined by the amount originally claimed in the suit and the defendant's right to removal cannot be taken away by allowing the plaintiff to amend by reducing his claim to less than $500 (Disbrow v. Driggs, 8 Abb. 306, note; Kanouse v. Martin, 15 How. U. S. Rep. 257).

If some, only, of the defendants reside out of the State, no removal can be had (Fairchild v. Durand, 8 Abb. 305; Prentis v. Brannan, 2 Blatchford, 162); and where three aliens and one citizen of New York united in a suit against a Connecticut corporation, it was held there could be no removal (Denniston v. N. Y. & N. Haven R. R. Co. 2 Abb. 278, 415; 1 Hilton, 62; and see Leonard v. Jamison, 2 Edw. Ch. 136).

The court refused to order the removal of an action by an assignee of a promissory note brought to recover damages for not properly presenting and protesting said note (Anderson v. Manufacturer's Bank, 14 Abb. 436). In Ayres v. West. R. R. Co. (48 Barb. 132; 32 How. 351), it was held that an action by a citizen of this State, as assignee of a foreign corporation, against another foreign corporation, upon a claim against the defendant, as a common carrier, to recover the value of goods entrusted to it to carry, could not be removed, such a claim being a chose in action. But see a note of the case of Bushnell v. Kennedy, in supreme court of U. S. (1 Albany Law Jour. 339); there Kennedy and others, as assignees, commenced a suit in a state court against Bushnell, a non-resident. The cause was removed to the circuit court, and remanded, for want of jurisdiction, to the State court. The supreme court reversed this decision, holding that the restriction upon the exercise of jurisdiction by the circuit court, in a suit to recover the contents of a chose in action in favor of an assignee, unless the suit might have been prosecuted in that court by the assignor, does not extend to a suit commenced in a State court, by a citizen of the State in which the suit is brought against a citizen of another State (and see Deshler v. Dodge, 16 How. U. S. Rep. 622).

An action to enjoin the prosecution of another action cannot be removed (Rogers v. Rogers, 1 Paige, 183). Nor can an action in which plaintiff and defendant are both non-residents of the State in which the action is brought (Smith v. Butler, 38 How. 192). An outstanding injunction does not prevent the removal (Byam v. Stevens, 4 Edw. Ch. 119).

A foreign corporation, having an agent, and doing business in this State, if sued by a citizen of this State, may remove the action (Fisk v. Chicago R. R. Co. 53 Barb. 472; 3 Abb. N. S. 453; Kranshaar v. N. Haven Steamboat Co. 7 Rob. 356).

A proceeding to charge joint debtors under section 375 of the Code cannot be removed (Fairchild v. Durand, 8 Abb. 305).

When there are two circuit courts within the State, the court below may remove the cause to either (Suydam v. Smith, 1 Denio, 263; Norton v. Hyes, 4 Denio, 245).

a. The Petition.—The statute does not state what the petition shall contain. It should, however,contain a statement of the facts necessary to authorize a removal. It must state the petitioner is a citizen of another State. To say he is a resident is not sufficient (Corp v. Vermilye, 3 Johns. 145). If the statement of a material fact is accidentally omitted, the omission may be supplied by amendment (Field v. Blair, 1 Code Rep. N. S. 362). The petition need not be signed by the petitioner personally. The signature of the attorney is sufficient (Vandevoort v. Palmer, 4 Duer, 677).

b. The Bond.-The bond need not be executed by the petitioner. Execution by the sureties is sufficient (Vandevoort v. Palmer, 4 Duer, 677). The bond should be several, as well as joint (Roberts v. Cannington, 2 Hall, 649). A bond in a penalty of $1000, held sufficient (Blanchard v. Dwight, 12 Wend. 192). In that case $14,000 was claimed, but defendant had not been arrested. In Jones v. Seward, 26 How. 436, the court says: "I think the court should not approve any sureties unless the amount of the bond is equal to the sum in which the defendant has been held to bail."


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