Слике страница
PDF
ePub

court with the transfer of jurisdiction. The 8th section declared that the second part of the Code should relate to appeals to the court of appeals, the supreme court, the county courts and the superior court of this city, and consequently the general provisions respecting appeals applied to all these courts, except so far as they were modified or limited by the chapter relating to each court specifically. This jurisdiction of the superior court upon appeals from the marine and district courts having been transferred to this court, all the provisions of the Code relating to such appeals applied thereafter to this court, as well as all new enactments relating to such appeals.

What is the result of the decisions as to the application of this action?

1. This section was not applicable to the commencement of an action under the Code, where the declaration had been filed, with the usual notice to plead indorsed thereon, and delivered to the sheriff to be served on the 1st of June, 1848, but not actually served on the defendant until the 15th of July, 1848. No suit was properly commenced in such

case.

2. A bill of exceptions taken after the Code, in an action commenced before the Code, must be argued pursuant to the former practice.

3. The original section of the Code (1848) providing for appeals to the court of appeals were only applied by this section (1848) to actions commenced after the Code took effect. 4. This section limits the effect of the Code to civil actions, and leaves a writ of error in criminal cases to issue under the judiciary act. A similar effect is produced as to judgments in mandamus and prohibition, by the 471st section of the Code.

5. In all suits pending when the Code (1848) took effect, the time of issuing executions was governed by the laws then in force. But after the amendment of section 238, in 1849, making it section 283, and applicable to judgments rendered as well before as after the Code, it was held that in all cases execution might be issued immediately, and within five years after perfecting judgment.

6. This section does not make the provisions of the Code on the subject of costs in civil actions applicable to actions pending when the Code took effect. But the weight of authority seems to be that costs on appeals taken to the court of appeals after the Code, in actions pending when the Code took effect, are to be governed by the provisions of the Code.

7. This section does not make section 179 of the Code applicable to the marine court of the city of New York, nor to justice's courts; consequently those courts have no jurisdiction to issue process against the person, nor any power to issue an order of arrest.

8. The summons in the marine and justices' courts is not in its form governed by the provisions of the Code (1848).

9. The pleadings in the marine and justices' courts, although the provisions of the Code are made applicable to them, except that they may be oral, are not subject to the provisions of the Code (1848) as to verification.

10. The provisions of the Code respecting the rules of evidence are made applicable to justices' courts by section 64, subdivision 15.

11. The sections of the Code allowing a demurrer or answer to a complaint for defect of parties (§ 144, 147 and 148) do not apply to suits in justices' courts. And it has been held that section 136 of the Code, in reference to judgments against joint debtors, is not applicable to justices' courts.

12. The authority given by the Code to amend the process and pleadings by adding parties, sections 173, 174 and 175, are inapplicable to justices' courts.

13. Sections 263 and 264, which provide for affirmative relief to the defendant, are not applicable to justices' courts.

14. The appointment of a next friend (§ 114) can be made by a justice of the peace.

15. "A voluntary appearance of a defendant is equivalent to personal service of the summons upon him" (Code, § 139). This section (8) is not applicable to the City Court of Brooklyn.

16. The provision for the commencement of an action (§ 127) and the service of the summons (§ 133) are applicable to the New York Superior Court.

17. All the provisions of the Code are applicable to forfeited recognizances in the courts of oyer and terminer and general sessions of the peace.

18. The Superior Court of the City of New York have now no jurisdiction of appeals from the district (justices' courts of that city.

PART I.

OF THE COURTS OF JUSTICE AND THEIR JURISDICTION.

OF THE COURT OF APPEALS.

OF THE SUPREME COURT, CIRCUIT COURTS, AND

[blocks in formation]

II.

III.

IV.

V.

VI.

VII.

COURTS OF OYER AND TERMINER.

OF THE 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.

OF THE COURTS OF JUSTICES OF THE PEACE.
OF JUSTICES' AND OTHER INFERIOR COURTS IN CITIES

TITLE I.

Of the Courts in general.

SECTION 9. The several courts of this State.

10. Their jurisdiction generally.

$9. The several courts.

The following are the courts of justice of this State:

1. The court for the trial of impeachments.

2. The court of appeals.

3. The supreme court.

4. The circuit courts.

5. The courts of oyer and terminer.

6. The county courts.

7. The courts of sessions.

8. The courts of special sessions.

9. The surrogates' courts.

10. The courts of justices of the peace.

11. The superior court of the city of New York.

12. The court of common pleas for the city and county of

New York.

13. The mayors' courts of cities.

14. The recorders' courts of cities.

15. The marine court of the city of New York.

16. The justices' courts in the city of New York 17. The justices' courts of cities.

18. The police courts.

1. Question. How did this section read in 1848?

Answer. As follows:

$9. [1848.] The following are the courts of justice of this State. 1. The court for the trial of impeachments.

2. The court of appeals.

3. The supreme court.

4. The circuit courts.

5. The courts of oyer and terminer.

6. The county courts.

7. The courts of general sessions of the peace.

8. The court of special sessions.

9. The surrogates' courts.

10. The courts of justices of the peace.

11. The superior court of the city of New York.

12. The court of common pleas for the city and county of New York.

13. The mayors' courts of the cities of Albany, Hudson

Troy and Rochester.

14. The recorders' courts of the cities of Buffalo and Utica

15. The marine court of the city of New York.

16. The assistant justices' courts in the city of New York 17. The municipal court of the city of Brooklyn.

18. The justices' courts of the cities of Albany, Troy and Hudson.

19. The police courts.

2. Q. When was this section changed?

A. In 1849, when it was changed as it now reads.

Questions.

3. Q. What reference has been made to the court of sessions?

4. Q. What reference has been made to the city court of Brooklyn?

5. Q. Does the act of 1859, which gives power to courts of sessions of the several coun ties to grant new trials, apply to the court of general secsions of the city and county of New York?

6. Q. Does the list of courts mentioned under this section comprise all the courts in the state?

3. Q. What reference has been maae to the court of sessions?

4. In the case of People agt. Hawkins, 5 How., 1, Special Term, 1850, which was a case where the prisoner was recognized to appear at the next "court of general sessions of the peace," GRIDLEY, J., said: "This argument is founded in an alleged misnomer of the court, and it seems to me is quite too technical to be upheld. The constitution of 1846, article 6, section 14, provides that the county judge, with two justices of the peace, &c., may hold 'courts of sessions. Under that power, the Code of 1848 speaks of these courts as 'courts of general sessions of the peace,' in sections 9 and 38; while, according to the nomenclature of the Code of 1849, they are called 'courts of sessions," in sections 9 and 32. Now these expressions all designate the same class of courts, and no one can be misled by the adoption of the designation employed in the Code of 1848. On the contrary, it is more definite and less liable to be confounded with the courts of special sessions, if that were a possible case. I cannot doubt, therefore, that the misnomer of the court, as stated in the recognizance, is wholly immaterial, and the unnecessary addition to the title of the court may be regarded as a surplusage. A descriptio curia' may be treated like the descriptio persona; and any circumstance, false or mistaken, which does not mislead, may be disregarded.

4. Q. What reference has been made to the city court of Brooklyn?

A. The answer to this question will be found under section 8, Q. 11.

[ocr errors]

5. Q. Does the act of 1859, which gives power to courts of sessions of the several counties to grant new trials, apply to the court of general sessions of the city and county of New York? A. In The People agt. Powell, 14 Abb., 91, Court of General Sessions of New York, April, 1862, HOFFMAN, Recorder, after reviewing the history of courts of sessions, held that the court of general sessions of the city and county of New York have power to grant new trials upon the merits and on the ground of newly discovery evidence. The act of 1859 (Laws of 1859, ch. 339, § 4) which grants to the courts of sessions of the several counties of the state the power to grant new trials extends to the court of general sessions in the city and county of New York.

Per contra, in The Matter of Marks, 14 Abb., 105, Special Term, February, 1862, a contrary view of the question was suggested. That was the case of an application for a certiorari and habeas corpus to the special sessions, under the act of 1859 (ch. 339). The application was refused, on the ground of doubt as to the construction of the statute. CLERKE, J., said: "To say the least, very great doubt exists whether the act of 1859 (ch. 339) applies to the New York courts of special sessions and the court of general sessions of the peace in and for the city and county of New York. The latter is a court created by the Montgomery charter; in the constitution of 1821 it is specifically recognized. By the constitution of 1846, courts of criminal jurisdiction in counties are termed courts of sessions, and are composed, by a provision of that constitution, of a county judge and two justices of the peace, and the county clerk is ex-officio the clerk of the sessions; wheras the court of the general sessions for the city and county of New York is composed of one judge (either the city judge or recorder), specially elected for that purpose alone, and has a clerk specially appointed. This distinction has been frequently recognized by the courts; and now, as well as when the case of The People agt. Goodwin (18 John. 206) was before the supreme court, is clothed with powers not intrusted to the sessions of any other county. I therefore think it would be unwise for a justice of this court to grant a certiorari and take a recognizance in a case of this description."

In The People agt. The New York General Sessions, 15 Abb., 59, General Term, Sep tember, 1862, INGRAHAM, J., said: "The question submitted to us on this appeal is, whether the act of the legislature relative to the courts of special sessions and courts of sessions, &c., passed April 14, 1859, applies to the courts of general sessions in the city of New York. The act provides for removal by certiorari of any conviction before the special sessions into the court of sessions, for review, and after an elaborate review of the origin and history of th, courts of the general sessions of the peace, and of the court of general sessions of the city and county of New York, concluded, that the statute under consideration did not apply to the court of general sessions of the peace in the city and

« ПретходнаНастави »