Consuls.-In Davis v. Packard (1834) 8 Pet. 312, 8 L. ed. 957, reported also (1833) 7 Pet. 276, 8 L. ed. 684 and (1832) 6 Pet. 41, 8 L. ed. 312, it was held that the supreme court of New York had no jurisdiction of an action against a consul general of Saxony.

Equity-In Sherman v. Felt (1849) 2 N. Y. 186, the court expressed the opinion that the supreme court, under the Constitution of 1846, had "the same jurisdiction as that court formerly had, with the addition of the equity jurisdiction of the late court of chancery," and might therefore entertain a motion to set aside a decree of the latter court.

The Constitution of 1846 and the Code of Procedure abrogated all limitations of amount in equity actions which had previously applied to the jurisdiction of the court of chancery. Sarsfield v. Van Vaughner (1862) 15 Abb. Pr. 65.

The jurisdiction conferred on the supreme court by this section "includes all cases which may be properly comprehended by established and existing equitable principles. The test of jurisdiction cannot be restricted to the existence of some definite precedent for the action which may be brought. That would destroy the flexibility required to maintain the utility of the court in the demands necessarily made for the exercise of its authority in new cases always arising out of the enterprises and progress of society. . Those principles are as broad as the just wants and necessities of civilized society require; and it is scarcely possible to imagine a case in which equitable relief may be proper which they do not include." Youngs v. Carter (1877) 10 Hun, 194.

Foreign corporations.-"It is an elementary principle of jurisprudence that a court of justice cannot acquire jurisdiction over the person of one who has no residence within its territorial jurisdiction, except by actual service of notice within the jurisdiction upon him, or upon some one authorized to accept service in his behalf, or by his waiver, by general appearance or otherwise, of the want of due service." Goldey v. Morning News (1895) 156 U. S. 518, 39 L. ed. 517, 15 Sup. Ct. Rep. 559. "The residence of an officer of a corporation does not necessarily give the corporation a domicil in the state. He must be there officially, there representing the corporation in its business;" and if the corporation is not doing business in the state, service therein of a summons upon such an officer does not give the state court jurisdiction. The supreme court of New York could not acquire jurisdiction of a foreign corporation by such a service. Conley v. Mathieson Alkali Works (1903) 190 U. S. 406, 47 L. ed. 1113, 23 Sup. Ct. Rep. 728. See also Geer v. VOL. IV. CONST. HIST.-34.

Mathieson Alkali Works (1903) 190 U. S. 428, 47 L. ed. 1122, 23 Sup. Ct. Rep. 807. The subject of the service of a summons on a foreign corporation is also considered under "Procedure," in the note on legislative power, in article 3.

Foreign judgment.-"The judgment of a court of a sister state has no binding effect in this state, unless the court had jurisdiction of the subject-matter and of the persons of the parties. Want of jurisdiction is a matter which may always be interposed against a judgment when sought to be enforced, or when any benefit is claimed for it; the want of jurisdiction, either of the subjectmatter or of the person of either party, renders a judgment a mere nullity." Kerr v. Kerr (1869) 41 N. Y. 272.

Foreign real property.-While, as a general rule, actions relating to real property must be brought where the property is situated, this rule may be waived, and the supreme court may, if the defendant does not object, entertain jurisdiction of an action to recover damages for an injury to real property situated outside the state. Sentenis v. Ladew (1893) 140 N. Y. 463, 37 Am. St. Rep. 569, 35 N. E. 650.

Forts and arsenals.-In the absence of Federal legislation on the subject state courts have jurisdiction of actions to recover damages for injuries sustained in portions of the state, like forts and arsenals, ceded to the United States. Congress might vest in Federal courts exclusive jurisdiction in such cases, but until it does so the supreme court may entertain the same jurisdiction of a personal action arising in such ceded territory that it might entertain of a similar action arising in another state. The effect of a cession to the United States "is merely to create, so to speak, within our territory, a foreign state or territory." Madden v. Arnold (1897) 22 App. Div. 240, 47 N. Y. Supp. 757, affirmed in (1900) 162 N. Y. 638, 57 N. E. 1127.

Inferior courts.-"It is quite certain that the legislature has not the right to authorize the city judge of Brooklyn to exercise complete jurisdiction in a cause pending in the supreme court, or a judge of any one court to exercise complete jurisdiction in a cause pending in another court, except where expressly directed by the Constitution; . . . such a power would be of the essence of judicial functions, and can be conferred only upon the judges of the court in which the action is pending." Cushman v. Johnson (1857) 13 How. Pr. 495, per Clerke, J.

In Boyd v. Stewart (1893) 30 Abb. N. C. 127, 24 N. Y. Supp. 830, the city court of New York asserted and exercised jurisdiction to

consolidate two actions for the foreclosure of a mechanic's lien, one of which had been commenced in that court and one in the supreme court. It was said that such an action was neither a common law nor an equity action, "but purely of statutory creation."

"The exercise of authority generally by the former court of chancery and subsequently by the supreme court over inferior courts, including probate courts, has always been recognized and has been continually exercised, except so far as it has been changed either by constitutional provision or by legislative enactment." The appellate division has general jurisdiction of a matter brought into it by appeal from the surrogate's court. Limitation upon the jurisdiction of the supreme court is beyond legislative power, but methods of procedure are subject to legislative control. The supreme court may stay proceedings in the surrogate's court. Re Pye (1897) 21 App. Div. 266, 47 N. Y. Supp. 689.

Judicial districts.-The provision at the end of the section, relating to the apportionment of justices on the alteration of judicial districts, was added by the Convention of 1894. The power to alter judicial districts was considered in Rumsey v. People (1859) 19 N. Y. 41, where it was held that the creation of a new county could not affect existing judicial districts.

The act of 1895, chap. 934, annexing to New York a part of Westchester county, did not affect judicial districts. People ex rel. Henderson v. Westchester County (1895) 147 N. Y. 1, 30 L. R. A. 74, 41 N. E. 563.

Jurisdiction, how limited.-In Carleton v. Darcy (1880) 14 Jones & S. 484, it was suggested that in proceedings under the act of 1839, chap. 246, for the acquisition of certain property for city purposes in New York, and which applied the procedure prescribed by the act of 1834, chap. 150, the supreme court had only limited and special jurisdiction, and therefore that it was necessary to show that all requisite steps had been taken.

While the legislature cannot limit or abridge the general jurisdiction of the supreme court as conferred by the Constitution, it may, without restricting its general jurisdiction, designate the place for the deposit of surplus moneys arising from the sale of lands in foreclosure or partition actions where the owner is dead. Sections 2798 and 2799 of the Code of Civil Procedure, requiring the deposit of such surplus moneys in the surrogate's court, and authorizing their distribution by that court, are valid, and do not affect the jurisdiction of the supreme court to entertain and determine the action and to execute its judgment. These sections deal only with

a fund arising from the execution of the judgment, not disposed of by the decree, and commit that fund to the custody and control of a court which, at the time the Constitution was adopted, had extensive jurisdiction over the estates of deceased persons, and this jurisdiction was recognized by that instrument in various provisions for its future organization and existence. "The general jurisdiction conferred upon the supreme court by the Constitution does not operate to prevent the legislature from giving additional jurisdiction to other tribunals, or from changing the common law, or from regulating and altering the jurisdiction and proceedings in law and equity in the same manner and to the same extent as had been exercised by it before the Constitution of 1846 was adopted." Re Stilwell (1893) 139 N. Y. 337, 34 N. E. 777.

"The supreme court, under the Constitution of the state, has general jurisdiction in law and equity, but the exercise of its power is subject to the limitations and regulations of the Code of Civil Procedure." Clapp v. McCabe (1895) 84 Hun, 379, 32 N. Y. Supp.

425.

Militia.-In People ex rel. Weeks v. Ewen (1859) 17 How. Pr. 375, Justice Clerke says the supreme court undoubtedly has "the power of redressing or remedying any usurpation or abuse of authority committed by any individual or association of individuals within the state. This power extends to all and over all; and certainly the military organization of the state is not exempt from it. To place that branch of the public service beyond the control and supervision of the tribunal possessing supreme original civil jurisdiction would be jeopardizing the civil rights of the citizens, and may, in the course of time, terminate in the ascendancy of the military power, and the subversion of constitutional government;" but "this court has no power to interfere with the legitimate exercise of authority, and will refrain from employing the power which it does possess, particularly by mandamus in doubtful cases or on inexpedient occasions." The governor, as commander in chief, had ordered the consolidation of certain militia companies. The court sustained his authority, and declined to inquire into the propriety of his action.

Pardons. Where a pardoned convict violates the condition of the pardon, he is again subject to punishment as if the pardon had not been granted; and the supreme court has jurisdiction to pronounce whatever judgment the circumstances may require. People v. Potter (1846) 1 Edm. Sel. Cas. 235.

Patents.-The court of chancery had jurisdiction of an action to

recover damages for a fraud in a sale of a patent right. The court say that an action for the infringement of a patent should be brought in the United States circuit court, but that, on general questions relating to patents, that court and the state courts have concurrent jurisdiction. Burrall v. Jewett (1830) 2 Paige, 134, citing Parsons v. Barnard (1810) 7 Johns. 144, where it was held that state courts had no jurisdiction of an action for the infringement of a patent. See also Dudley v. Mayhew (1849) 3 N. Y. 9.

Place of trial.-The jurisdiction of the supreme court to change the place of trial of an action in a proper case was not affected by the act of 1888, chap. 577, requiring certain actions for the recovery of penalties for the violation of the game laws to be prosecuted in the county where commenced. People v. Coughtry (1890) 58 Hun, 245, 12 N. Y. Supp. 259; People v. Rouse (1891) 39 N. Y. S. R. 656, 15 N. Y. Supp. 414.

The provision of the domestic commerce law of 1896, chap. 376, 29, relating to actions for penalties imposed for the unlawful use of milk cans, and prohibiting a change of the place of trial of an action brought as therein specified, is an unconstitutional limitation of the jurisdiction of the supreme court. Bell v. Niewahner (1900) 54 App. Div. 530, 66 N. Y. Supp. 1096; Warner v. Palmer (1901) 66 App. Div. 127, 72 N. Y. Supp. 703.

Preferences in civil actions.-The legislature has no power to control or limit the discretion of the court as to the order of its business. "One of the powers which has always been recognized as inherent in courts, which are protected in their existence, their powers and jurisdiction by constitutional provisions, has been the right to control its order of business and to so conduct the same that the rights of all suitors before them may be safeguarded. This power has been recognized as judicial in its nature, and as being a necessary appendage to a court organized to enforce rights and redress wrongs.

.. Under the Constitution the legislature has the power to alter and regulate the proceedings in law and equity," but it cannot "compel the courts to give a hearing to a particular suitor to the absolute exclusion of others who have an equal claim upon its attention." The act of 1904, chap. 173, amending 8 793 of the Code of Civil Procedure by requiring the court to designate a day certain for the trial of a preferred cause, and to try the cause on that day, was an unconstitutional limitation of judicial discretion. Riglander v. Star Co. (1904) 98 App. Div. 101, 90 N. Y. Supp. 772; Martin's Bank v. Amazonas Co. (1904) 98 App. Div. 146, 90 N. Y. Supp. 734.