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$ 11. The court of appeals shall have exclusive jurisdiction to review, upon appeal, every actual determination hereafter made at a general term, by the supreme court, or by the superior court of the city of New York, or the court of common pleas for the city and county of New York, in the following cases, and no other :

1. In a judgment in an action commenced therein, or brought there from another court; and upon the appeal from such judgment, to review any intermediate order involving the merits, and necessarily affecting the judgment.

2. In an order affecting a substantial right, made in such action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken.

3. In a final order affecting a substantial right, made in a special proceeding, or upon a summary application, in an action, after judgment.

But such appeal shall not be allowed in an action originally commenced in a court of a justice of the peace, or in the marine court of the city of New York, or in an assistant-justices' court of that city, or in a justices' court of any of the cities of this State.

§ 12. The court of appeals may reverse, affirm, or modify the judgment or order appealed from, in whole or in part, and as to any or all of the parties; and its judgment shall be remitted to the court below, to be enforced according to law.

On reference to the corresponding section in the measure of 1849, it will be seen that the recent amendments materially extend the powers previously exercised by this court, the whole of subdivision 2 being entirely new.

In the Code of 1851, a fourth subdivision was added, by which an appeal lay to this court in an order granting a new trial.

The latter provision was probably inserted in consequence of the decisions in Duane v. The Northern Railroad Company, 3 Comst. 545; 4 How. 364 ; Lansing v. Russell, 2 Comst. 563 ; 4 How. 213; and Tilley v. Phillips, 1 Comst. 610; 3 How. 364 ; 1 C. R. 111: in all of which it was held that orders of this nature were not proper subjects for the interference of the appellate tribunal; both because they could not be held to come within the description of “ a final determination of the rights of the parties in the action," the definition of a judgment in section 245, and also inasmuch as they were in their nature matters addressed to the discretion of the court below, with the exercise of which discretion the higher tribunals have hitherto, as a general rule, always refused to interfere. On the recent amendment these views have again prevailed; the authority of the above cases is reëstablished, and the jurisdiction of this court is restored to its former consistency, by the exclusion of all discussions on questions of fact, except only as subsidiary to questions of law, under any circumstances.

It will be observed that, by this amendment, the municipal court of Brooklyn, ranked with justices' courts in the Code of 1849, is no longer to be looked upon as a court of inferior jurisdiction, but as standing, for the future, in regard to the review of its decisions, on the same level as other city and county courts.

The amendment effected in section 14, by which, in the event of five judges not concurring in the judgment on any case submitted to the court, that case is, in every instance, to be reheard, and that twice, in the event of a second disagreement, before judgment of affirmance is given, in consequence of the members of the court being equally divided, is an important change from the code of 1849, under which, on such an event occurring, the judgment of the court below was affirmed, as of course, unless a rehearing was specially ordered.

The question raised and decided in Oakley v. Aspinwall, 3 Comst. 547,9 L. O. 45, as to the effect of a judge taking part in the proceedings, when under disqualification on the ground of relationship, will be borne in mind. A serious difficulty was raised in the same case, as to whether this court could be held at all by a less number than by the whole of the eight judges. The proposition that it could be so held was, however, decided in the affirmative by a majority of six; which majority also held that one consisting of four judges out of seven was competent to make an order upon motion, but declined to give any opinion upon the further question as to whether such a majority were competent to pronounce a judgment. It seems clear upon the face of the measure that a majority of four only would not possess adequate jurisdiction in this last respect, inasmuch as, by the express provisions of sec. 14, a concurrence of five judges is necessary for that purpose.

When judgment of affirmance is pronounced in open court, without any public expression of dissent on the part of any of its members, it would seem that it is not competent for the parties to go behind that judgment, and to apply for a rehearing on any allegation, that, in their consultations out of court, the judges were equally divided in opinion. The public act of the court,

in ordering such affirmance, is conclusive, and cannot be gone behind or impeached on any private grounds: Mason v. Jones, 3 Comst. 375; 5 How. 118; 3 C. R. 164. Nor can any allegations of that nature be taken into consideration by the inferior tribunal, whose decision has been reviewed, when the question comes on afresh under the remittitur: Qakley v. Aspinwall, 10 L. 0. 79.

See these subjects further considered in a subsequent portion of the work, under the head of appeals to the court in question.

CHAPTER IV.

OF THE SUPREME COURT.

The next tribunal which presents itself for consideration is the supreme court-a court whose powers are more extensive and more widely diffused than those of any other within the state, and embrace every species of cause and every variety of jurisdiction ; with authority also to remove cases pending in tribunals of inferior jurisdiction within its own cognizance, by certiorari. Its common law authority, analogous to that possessed by the Court of King's Bench in England, has been exercised from time immemorial, or rather, to speak more closely, from the original establishment of the English common law in this country. (See on this subject Kanouse v. Martin, 3 Sandf. S. C. R. 657, per Duer, J.) Its equitable Jurisdiction is of more recent origin, being first indicated by the Constitution of 1846, art. 6, sec. 3, and afterwards expressly conferred by the judiciary act, laws of 1847, c. 280; and in particular by section 16 of that measure.

It is in effect coextensive with and in substitution for, that of the former courts of chancery thereby abolished: Mason v. Jones, 1 C. R. (N. S.) 335. Besides their authority in civil cases, the justices of this court exercise criminal jurisdiction in the courts of oyer and terminer, as defined by art. 5 of the measure last referred

to.

The mode of election—the classification and the delegation of four of the judges of this court, to sit from time to time in the court of appeals—their distribution in districts throughout the state,-and the provisions as to the presiding judge from time to time in each of those districts, remain as they were previously settled by the revised statutes and by the judiciary act. The Code effects no alteration whatever in these respects.

The distinction between the general and special terms of this and the other tribunals of higher jurisdiction, remains also untouched by the recent measures of amendment, though, in some few respects, the matters falling within the peculiar attributes of each of those branches of the court have been made the subject of mutation. The special term, or the circuit court, in which a single judge presides, remains, as before, that branch of the aggregate tribunal, to which belongs the consideration, in the first instance, of every question brought before it, with the few exceptions about to be noticed ; the circuit court taking peculiar cognizance of those cases in which the trial takes place by jury, and the special term of those which are triable by the court. The functions of the general term are, on the contrary, for the most part, strictly appellate ; and embrace the revision of all decisions of the single judge on questions of law, to the exclusion, under ordinary circumstances, of questions of fact ; and likewise the review of the judgments of subordinate courts. In certain cases, however, and in particular on appeals from orders involving the granting or refusing of a new trial, questions of fact are entertainable by this branch of the court. The general term possesses also a special jurisdiction in reference to the admission of attorneys and counsel, and to the control of the conduct of those officers when admitted ; and any question submitted for the opinion of the court, under the peculiar provisions of sec. 372 of the Code, is also originally cognizable hy it. The concurrence of a majority of the judges holding a general term is, by sec. 19 of the Code, made indispensable to the validity of its decisions, and in event of their non-concurrence, the case is on all occasions to be reheard. It will be seen that by sec. 24 of the Code, the fullest powers of adjournment are given with reference to the terms of the court, both general and special, including the circuit court and courts of oyer and terminer.

Besides the hearing of causes and appeals, and of those more important interlocutory proceedings in each, which involve

rence.

points vital to the decision of the controversy between the parties; occasions on which it becomes necessary to obtain the direction or authority of the court, on matters of minor importance, are, during the progress of a suit, of almost daily occur

To provide for these matters, and to prevent the general calendars of the court from being overburthened by their constant recurrence, a subordinate but most important jurisdiction is exercised by the individual judges of each of the higher tribunals at their chambers, or otherwise out of court. To enter into details on the different subjects embraced within these attributes, would at present be premature ; the only remark necessary at this juncture is, that, to a certain extent, and for certain purposes, that branch of jurisdiction is, as before noticed, capable of delegation, and may be exercised, exofficio, by the different county judges throughout the state, each within the limits of his peculiar jurisdiction, but within those limits only.-See Code sec. 401, 402, 103 and 405. The powers so exercised are substantially the same as those possessed under the old practice by the judges in question, and also by the officers styled “ supreme court commissioners,” and are conferred by the revised statutes, in connection with sec. 29 of the judiciary act.-See also Graham's practice, chap. ii, sec. 2. The jurisdiction of these officers being, however, limited, the presumption, as in all similar cases, will always be against rather than in favor of their power to exercise it, wherever that power is open to reasonable doubt on any point, either technical or affecting the merits.—See The People ex rel. Williams v. Hulburt, 5 How. 446 ; 1 C. R. (N. S.) 75; 9 L. O. 245. Although, however, nothing can be presumed in favor of the jurisdiction of such officers in these matters, nothing will, on the contrary, be presumed against it, in the absence of actual proof.-Barnes v. Harris, 4 Comst. 374.

It is clear from the terms of the Code that the county judge has no power to act at all without his county ; and in Eddy v. Howlett, 2 C. R. 76, it was held that the expression “his county,” means, as regards the granting of orders, not the county within which the judge himself resides, but the county within which the action is triable. A contrary view is, however, taken in the more recent case of Peebles v. Rogers, 5 How. 208, where an order, extending the time to answer, granted in the county of the defendant's residence by the county judge of that

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