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3. The supreme court.
12. The court of common pleas for the city and county of New-York.
13. The mayors' courts of cities.
It will of course be observed, that, valuable as an official list of the different courts of justice unquestionably is, still, as regards the operation of the Code itself, that list is in part irrelevant, many of the tribunals enumerated being neither directly nor indirectly affected by its provisions. Those provisions relate simply and solely to civil, and trench in no manner upon the limits of either criminal or police jurisdiction; and therefore the proceedings in Nos. 1, 5, 7, 8, and 18, which courts fall exclusively within one or the other of the latter categories, are entirely without
The Surrogate's courts, (No. 9,) being tribunals exercising special statutory jurisdiction, are likewise in no manner affected by the recent changes. Proceedings in them, and the review of those proceedings are, on the contrary, exclusively and entirely governed by the provisions of the Revised Statutes.
The marine and justice's courts also, Nos. 15, 16, and 17, though their jurisdiction is defined by the Code, and the general course of practice in them laid down by title VI. of part I. of that measure, are likewise mainly governed by other statutory provisions. The course of proceedings in those courts is essentially different in all its main features from that pursued in those of higher jurisdiction, and remains substantially the same as heretofore. No attempt has accordingly been made by the author to enter into the full details of their practice, his observations on the subject being confined to a mere reference to the enactments of the Code as regards the tribunals in question, and a citation of the different reported cases which bear upon the appellate jurisdiction of the higher courts in relation to the review of their decisions. To have attempted more than this, would have involved the composition of a separate and independent treatise, upon a subject unconnected with the general operation of the Code, and one moreover already separately dealt with by others.
Before proceeding to the detailed consideration of the jurisdiction and functions of the different tribunals comprised in the foregoing list, another subject seems to require at least a cursory notice, though in strictness of a collateral nature; that subject being the exclusive or concurrent jurisdiction of the federal courts in certain cases.
To enter into any lengthened discussion upon the limits and exercise of that jurisdiction, would be, of course, beyond the limits of the present work; while, on the other hand, to omit all reference to it might lead to serious inconvenience. The better course appears to be to give a slight sketch of its extent and boundaries, and then to leave the matter open for the further researches of the student, merely indicating the sources through which those researches may best be prosecuted.
He cannot take a better guide for this purpose than the first volume of the invaluable commentaries of Chancellor Kent, part II. consulting, in particular, Lectures XIV. to XIX. inclusive, with the different statutory provisions and authorities there cited. The summary contained in the first volume of Conkling's treatise will also be found succinct and trustworthy. An attentive perusal of these two works, will be sufficient to give a good general idea upon the subject, and to suggest the further course of reading by which its details may be fully mastered.
Without pretending therefore, to give more than a mere sketch of the jurisdiction in question, that jurisdiction may be defined as threefold
1. The original and exclusive, 2. The concurrent,
3. The appellate authority possessed by the courts referred to, within the limits of the state sovereignties, and which authorities are exercisable, the two former by the district and circuit, and the latter by the supreme court of the United States.
The original and exclusive jurisdiction of the federal tribunals extends to controversies of the following nature :
1. To cases between two states,
2. To cases where a foreign ambassador, minister, or consul, or the domestics of the two former are parties defendants.
3. To cases in which a state is defendant, save only as regards controversies between a state and its own citizens.
4. To cases arising under the patent or copyright laws, or the revenue laws of the United States.
5. To cases of admiralty or maritime jurisdiction, and
6. To criminal cases arising within the limits of that jurisdiction, or cognizable under the authority of the United States.
In Dudley v. Mayhew, 3 Comst. 9, it was held by the court of appeals in this state that, in cases falling under class 4, the state courts cannot exercise jurisdiction, even by consent. The personal privileges under class 2, seem, however, capable of being waived by continued non-assertion, though the right of asserting them can never be barred, but may, on the contrary, be exercised at any stage of any proceeding in the local tribunals. See this subject more fully considered hereafter, under the head of parties defendants in actions in the courts of this state.
The concurrent jurisdiction of the federal tribunals may be shortly stated as comprising,
1. All cases in law or equity, arising under the Constitution, laws and treaties of the United States ; or where an alien sues for tort in violation of the law of nations.
2. Cases wherein foreign ambassadors, consuls, &c., are plaintiffs.
3. Cases in which the United States are plaintiffs.
4. Controversies in which a state is plaintiff, and individuals are defendants.
5. Controversies between a state defendant, and its own citizens.
6. Controversies between citizens of different states, or be. tween citizens of the same state, claiming lands under grants of different states.
7. Controversies between a state or the citizens thereof, and a foreign state.
8. Controversies between citizens and aliens. The jurisdiction under classes 3, 6, and 8, is, however, limited
to cases where the value of the thing in controversy exceeds five hundred dollars, the amount of the claim itself, and not of the recovery, being the criterion of value. Where exercisable, the jurisdiction in cases of this description is so far paramount, that they are removable from the state court to the federal tribunal by authority of the latter, by means of a proceeding analagous to certiorari. See Kent Com. vol. 1, p. 303. See also Field v. Blair, 1 C. R. (N. S.) 292, 361; Suydam v. Ewing, Ad. 29.
In cases falling under Nos. 6 and 8 of the last-mentioned classes, it is essential that the facts conferring jurisdiction, should appear on the face of the record, or the federal tribunal cannot take cognizance of them at all. In particular, where one party is an alien, the citizenship of the other must be affirmatively shown, the jurisdiction of the federal courts not extending to suits between one alien and another. See 1 Kent, 344 and 345, and the cases there cited.
The appellate jurisdiction of the federal tribunals extends, in the last place, to all cases in which any decision shall have been pronounced by the highest court of any state, repugnant to the Constitution, treaties, or statutes of the United States, or drawing in question any commission issued or authority conferred by the general government. The extent of this jurisdiction will be found defined at 1 Kent Com. p. 299 and 300, and the whole of the lecture, No. XIV, in which that passage is contained, and of the following one, No. XV, in which the subject is more fully entered upon, and various authorities are cited, demands and should receive the student's most careful attention.
Proceeding then upon the consideration of the jurisdiction and office of each of the different tribunals whose decisions are affected by the Code of Procedure, the first in dignity and importance is the court of appeals, the tribunal of last resort, escept in those few cases arising on points of constitutional law, in which, as before noticed, the appellate jurisdiction of the supreme court of the United States may be invoked.
Such being the constitution and powers of the court of appeals, it need hardly be remarked, that its reported decisions are of the highest authority, and that a principle of law once established by one of those decisions, is, as a general rule, conclusive upon the inferior jurisdictions, until either reversed or modified by the same tribunal, or by the paramount authority of the federal court of appeal, in cases where that jurisdiction may be invoked.
The court in question occupies the place and exercises the powers of the court of errors under the old system. The provisions on its original creation will be found in article 6 of the constitution of 1846, and also in article 2 of the judiciary act, laws of 1847, c. 280. It consists of eight judges—four elected by the electors of the State, one at the expiration of every two successive years, and four selected from the justices of the supreme court; the judge of the former class having the shortest time to serve, being, from time to time, the chief judge ex officio. Its sittings were at first intended to be migratory, and were held in turn in each of the different judicial districts ; but, by section 13 of the Code of 1851, they are now permanently fixed for the future, at Albany, where four terms are to be held every year, at the periods therein specified, with a power to appoint additional terms when required by the public interest.
The following are the provisions of the Code, as last amended, on the subject of the important jurisdiction exercisable by this high tribunal :