Opinion of the Court, per HAIGHT, J. [Vol. 152. HAIGHT, J. On the 26th day of November, 1890, the plaintiff made an affidavit, in which he stated that, on the 27th day of November, 1880, he recovered a judgment against the defendant, George King, in the County Court of Westchester county for the sum of $453.38, which judgment remained wholly unsatisfied; that he desired leave of the court to bring an action against the defendant upon the judgment, but that he was unable to make personal service upon the defendant of the notice of application for such leave owing to the fact that the defendant was a non-resident of the state, and, as he was informed and believed, resided in Farmingham, Massachusetts. Upon this affidavit Justice CULLEN, on the same day, made an order permitting the notice, with the affidavit of the plaintiff annexed, to be made by mailing a copy, securely closed in a postpaid wrapper, addressed to George King at Farmingham, Massachusetts. The notice was required to be mailed on or before November 28th, and by its terms was returnable at a Special Term of the Supreme Court to be held in the village of White Plains on the 6th day of December, 1890. On the return day no one appeared to oppose the motion, and an order was entered by Justice JACKSON O. DYKMAN granting leave to the plaintiff to bring the action prayed for. Subsequently the action was brought and resulted in a judgment in favor of the plaintiff. On the 14th day of April, 1894, the defendant, upon affidavits setting forth the facts, moved for an order vacating the order granting leave to bring the action and all subsequent proceedings taken thereto. This motion was denied, and the order denying such motion was affirmed in the General Term, Justice DYKMAN sitting as one of the judges of the court and writing the opinion. It is claimed, among other things, that the original order, granting leave to sue, was improvidently granted for the reasons that the notice of the application for the order was served by mail without the state only nine days before the day set for the hearing of the motion; that the affidavit of the plaintiff upon which the order was granted did not show that personal service of the notice could not be made within the N. Y. Rep.] Opinion of the Court, per HAIGHT, J. state; that the plaintiff's affidavit was made upon hearsay statements made by one who was not shown to have had any knowledge as to the whereabouts of the defendant, and that the same was not in compliance with the provisions of section 1913 of the Code of Civil Procedure. It will thus be seen that one of the chief questions brought up for review in the General Term was as to whether the original order was properly granted. The learned justice writing the opinion in the General Term says, with reference thereto, that there was only irregularity in the original motion for leave to sue." It is thus apparent from his own statement that he was sitting in review of an order made by him. This, we think, he had no power to do. Article six, section eight, of the old Constitution provided that "no judge or justice shall sit at a General Term of any court, or in the Court of Appeals, in review of a decision made by him, or of any court of which he was at the time a sitting member." To the same effect is article six, section three, of the new Constitution. This provision must be construed according to its spirit and intent; that it applies to an order of this character there can be no serious question. (Duryea v. Traphagen, 84 N. Y. 652; Pistor v. Hatfield, 46 N. Y. 249; Real v. People, 42 N. Y. 270, 276.) It is quite evident that in the General Term Justice DYKMAN's attention was not called to the fact that he presided at the Special Term at which the original order was made, and that he had forgotten that fact. Mistakes of this character are not uncommon. Litigants are, however, entitled to have their appeals heard and determined by a constitutional court, and we would not be justified in depriving them of this right, however innocent the mistake may be. The order of the General Term should be reversed, and the matter remitted to the Appellate Division, there to be reheard and determined, with costs to abide the event. All concur. Ordered accordingly. 152 72 156 585 152 72 j157 480 152 72 159 134 159 258 JOSEPH KOCH, Appellant, e. THE MAYOR, ALDERMEN AND CONSTITUTIONALITY OF CH. 601, L. 1895- POLICE JUSTICES IN THE CITY AND COUNTY OF NEW YORK ABOLITION OF OFFICE ABRIDGMENT OF TERMS. Chapter 601, Laws of 1895, relating to the inferior courts of criminal jurisdiction of the city and county of New York, is constitutional, and abolished the office of police justice therein; and as the abolition of the office carried with it, as a necessary and inseparable incident, the termination of the official life of its several incumbents, the abridgment of their terms of office, as provided in the act, is not in conflict with section 22, article 6 of the Constitution, providing that “Justices of the peace and other local judicial officers provided for in sections seventeen and eighteen, in office when this article takes effect, shall hold their offices until the expiration of their respective terms." Koch v. Mayor, 5 App. Div. 276, affirmed. (Argued January 19, 1897; decided March 2, 1897.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 22, 1896, which affirmed a final judgment in favor of defendant entered upon a decision of the court on trial at Special Term sustaining a demurrer to the complaint. This action was brought to recover three months' salary alleged to be due the plaintiff as a police justice of the city of New York. The plaintiff alleged in his complaint that on the 4th of January, 1893, he was duly appointed a police justice of the city of New York by the mayor of that city for the term of ten years at an annual salary of $8,000, payable quarterly; that he duly qualified and entered upon the discharge of the duties of said office, and has always been ready and willing to perform the duties thereof as required by law; that on May 10th, 1895, an act was passed by the legislature of the state of New York, entitled "An act in relation to the inferior courts. of criminal jurisdiction of the city and county of New York," which is referred to as a part of the complaint, and that under such act the mayor of said city assumed to appoint nine city magistrates in the city and county of New York and five justices of the Court of Special Sessions of said city and county. Notwithstanding the passage of this act, as the plaintiff further alleged, under and pursuant to sections 17 and 22 of article VI of the Constitution of this state, he is entitled to hold office until the expiration of his term on the third of January, 1903, and that on the first of October, 1895, there was due and payable to him, under and by virtue of the said appointment as police justice, the sum of $2,000, which had been duly demanded and a claim therefor presented to the comptroller of said city for adjustment, but the same had neither been paid nor adjusted although more than thirty days had elapsed since the presentation of such claim. The defendant demurred to the complaint upon the ground that the facts set forth do not constitute a cause of action. By the usual course of procedure the demurrer was sustained, the complaint dismissed and a final judgment entered accordingly, which upon appeal to the Appellate Division was duly affirmed. From the judgment of affirmance the plaintiff appeals to this court. George Hoadly, A. J. Dittenhoefer and Matthew Hale for appellant. The law, in so far as it attempts to abolish plaintiff's office, is unconstitutional. (Const. N. Y. art. 6, § 22; Rathbone v. Wirth, 150 N. Y. 459; People ex rel. v. Draper, 15 N. Y. 543; Cass v. Dillon, 3 Ohio St. 609; Power v. Village of Athens, 99 N. Y. 592; In re Breslin, 45 Hun, 214; In re W. S. A. & P. R. R. Co., 115 N. Y. 447; Lyddy v. Long Island City, 104 N. Y. 218; Chicago Ry. Co. v. U. S., 127 U. S. 406.) The part of the law that abolishes the office of police justice may be set aside without invalidating the part that creates the new office of city magistrates. (People ex rel. v. Kenny, 96 N. Y. 294; Packet Co. v. Keokuk, 95 U. S. 89; Baldwin v. Franks, 120 U. S. 685.) Plaintiff can maintain this action without resorting to quo warranto to establish his title to office. (Curtin v. Barton, 139 N. Y. Opinion of the Court, per VANN, J. [Vol. 152. 511; People ex rel. v. Common Council of Brooklyn, 77 N. Y. 503; Rex v. Whitwell, 5 T. R. 85.) Robert Earl for appellant. Under the Consolidation Act (Laws of 1882, chap. 410, § 1542), and the amendments thereto, the plaintiff's term of office was ten years; and, as one of the fifteen police justices, he was a magistrate, justice of the Court of Special Sessions, justice of the Police Courts and member of the board of police justices. He was, therefore, a judge or justice of an inferior court, and entitled to hold his office until the expiration of his term. (Const. N. Y. art. 6, §§ 17, 18, 22; People ex rel. v. Wemple, 125 N. Y. 485; Wenzler v. People, 58 N. Y. 516; Const. N. Y. 1821, art. 1, § 15; Const. N. Y. 1846, art. 14, § 1; People ex rel. v. Gardner, 45 N. Y. 812.) Lewis L. Delafield for respondent. The Constitution has not imposed any limitation upon the power of the legislature either to abolish the office of police justice or to shorten the term of the incumbents of that office. (L. 1848, ch. 153; L. 1882, ch. 410, §§ 1541-1568; Wenzler v. People, 58 N. Y. 516; People v. Morgan, 5 Daly, 161; 58 N. Y. 679; Coulter v. Murray, 4 Daly, 506; Const. N. Y. art. 6, §§ 1, 4, 7, 14, 15, 17, 18, 22; Nevada v. Tilford, 1 Nev. 244; North Dakota v. Faussett, 1 N. D. 190; Missouri v. Hermann, 11 Mo. App. 43; In re Oliver Lee & Co.'s Bank, 21 N. Y. 9; Demarest v. Mayor, etc., 74 N. Y. 161, 167; Smalley v. Snell, 32 Pac. Rep. 1062; People v. Jaehne, 103 N. Y. 182.) There is no constitutional objection to that portion of the statute under consideration which provides for the appointment of the new justices of the Court of Special Sessions and the new city magistrates. (Curtin v. Barton, 139 N. Y. 505; People ex rel. v. Porter, 90 N. Y. 68, 72; Anderson v. Reilly, 66 N. Y. 189; People ex rel. v. Terry, 108 N. Y. 1; Bocock v. Cochran, 32 Hun, 521.) VANN, J. On the 10th of May, 1895, the legislature of this state enacted that: "From and after midnight of the thirtieth day of June, 1895, the office of police justice in the city and |