pointed. Their salaries shall be paid by the said counties respectively, and shall be the same as the salaries of the other justices of the supreme court residing in the same counties. Their successors shall be elected as justices of the supreme court by the electors of the judicial districts in which they respectively reside.

The jurisdiction now exercised by the several courts hereby abolished shall be vested in the supreme court. Appeals from inferior and local courts now heard in the court of common pleas for the city and county of New York, and the superior court of Buffalo, shall be heard in the supreme court in such manner and by such justice or justices as the appellate divisions in the respective departments which include New York and Buffalo shall direct, unless otherwise provided by the legislature.

[Jud. Art. 1869, § 12; Am. 1880.]

A party who had availed himself of the statutory right to appeal from a judgment of the Buffalo municipal court to the special term of the supreme court could not afterwards appeal to the general term of that court. The right to appeal to either court was in the alternative, and having made his election, the party was bound by it. This right of appeal was conferred by the act of 1895, chap. 805, as a substitute for the former appeal from the municipal court to the Buffalo superior court, and followed the abolition of the latter court by the Constitution of 1894. Boechat v. Brown (1896) 9 App. Div. 369, 41 N. Y. Supp. 467.

§ 6. [Circuit courts and courts of oyer and terminer abolished. 1-Circuit courts and courts of oyer and terminer are abolished from and after the last day of December, one thousand eight hundred and ninety-five. All their jurisdiction shall thereupon be vested in the supreme court, and all actions and proceedings then pending in such courts shall be transferred to the supreme court for hearing and determination. Any justice of the supreme court, except

as otherwise provided in this article, may hold court in any county.

[New.]

The Constitution of 1821 authorized a circuit judge to hold circuits anywhere in the state, and this right was not restricted by the fact that another judge was holding an equity term in the same circuit at the same time. Child v. Fulton Bank (1827) 7 Cow. 513.

The right of a justice of the supreme court to hold court in any county is not limited by the fact that he had been assigned to hold a term in another department by the justices thereof. Although such justices did not, in terms, possess the right to make such assignment, it was at least an invitation, which the justice might accept or decline, and having accepted it his jurisdiction was complete. People v. Herrmann (1896) 149 N. Y. 190, 43 N. E. 546.

The provision abolishing the court of oyer and terminer, and transferring its jurisdiction and pending proceedings to the supreme court, was self-executing, and no order was necessary to vest in the supreme court complete authority to hear and determine any criminal action or proceeding pending in the court of oyer and terminer on the last day of December, 1895. People v. Hoch (1896) 150 N. Y. 291, 44 N. E. 976.

§ 7. [Court of appeals.]—The court of appeals is continued. It shall consist of the chief judge and associate judges now in office, who shall hold their offices until the expiration of their respective terms, and their successors, who shall be chosen by the electors of the state. The official terms of the chief judge and associate judges shall be fourteen years from and including the first day of January next after their election. Five members of the court shall form a quorum, and the concurrence of four shall be necessary to a decision. The court shall have power to appoint and to remove its reporter, clerk, and attendants. Whenever and as often as a majority of the judges of the court of appeals shall certify to the governor that said court is unable, by reason of the accumulation of causes pending therein, to hear and dispose of the same with reasonable

VOL. IV. CONST. HIST.-35.

speed, the governor shall designate not more than four justices of the supreme court to serve as associate judges of the court of appeals. The justices so designated shall be relieved from their duties as justices of the supreme court and shall serve as associate judges of the court of appeals until the causes undisposed of in said court are reduced to two hundred, when they shall return to the supreme court. The governor may designate justices of the supreme court to fill vacancies. No justice shall serve as associate judge of the court of appeals except while holding the office of justice of the supreme court, and no more than seven judges shall sit in any case.

[As amended in 1899; Const. 1846, art. 6, § 2; Jud. Art. 1869, § 2; Const. 1894, art. 6, 8 7. The last four sentences were added by the amendment of 1899.]

A judge must be wholly disinterested between the parties. Partiality and bias are presumed from the relationship or consanguinity of a judge to the party. "He is first excluded by the moral sense of all mankind; the common law next denies him the right to sit,” and then the legislature has embodied this universal sentiment in the form of a statutory prohibition. If a judge is disqualified he cannot sit in the cause, even by consent of parties; his disqualification is absolute and cannot be waived. The court ordered a reargument of a cause in which a judge had taken part after notice by him that he was disqualified by relationship, but who had consented to sit at the solicitation of the counsel for both parties. Oakley v. Aspinwall (1850) 3 N. Y. 547.

§ 8. [Vacancies in court of appeals.]—When a vacancy shall occur otherwise than by expiration of term, in the office of chief or associate judge of the court of appeals, the same shall be filled, for a full term, at the next general election happening not less than three months after such vacancy occurs; and until the vacancy shall be so filled, the governor, by and with the advice and consent of the senate, if the senate shall be in session, or, if not in

session, the governor, may fill such vacancy by appointment. If any such appointment of chief judge shall be made from among the associate judges, a temporary appointment of associate judge shall be made in like manner; but in such case, the person appointed chief judge shall not be deemed to vacate his office of associate judge any longer than until the expiration of his appointment as chief judge. The powers and jurisdiction of the court shall not be suspended for want of appointment or election, when the number of judges is sufficient to constitute a quorum. All appointments under this section shall continue until and including the last day of December next after the election at which the vacancy shall be filled.

[Const. 1821, art. 4, § 7; 1846, art. 6, § 13; Jud. Art. 1869, § 3.]

The history of this section will be found in the article on the judiciary, in the chapter on the Convention of 1867.

89. Jurisdiction of court of appeals.]—After the last day of December, one thousand eight hundred and ninetyfive, the jurisdiction of the court of appeals, except where the judgment is of death, shall be limited to the review of questions of law. No unanimous decision of the appellate division of the supreme court that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court shall be reviewed by the court of appeals, except where the judgment is of death; appeals may be taken, as of right, to said court only from judgments or orders entered upon decisions of the appellate division of the supreme court, finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance judgment absolute shall be rendered against them. The appellate division in any department may, however, allow

an appeal upon any question of law which, in its opinion, ought to be reviewed by the court of appeals.

The legislature may further restrict the jurisdiction of the court of appeals and the right of appeal thereto, but the right to appeal shall not depend upon the amount involved.

The provisions of this section shall not apply to orders made or judgments rendered by any general term before the last day of December, one thousand eight hundred and ninety-five, but appeals therefrom may be taken under existing provisions of law.

[New.]

The Constitution does not "affirmatively define the jurisdiction of the court of appeals beyond confining it to a review of questions of law, except that it prescribes that appeals as of right (save where the judgment is of death or where the appeal is from an order granting a new trial) can only be taken to the court from judgments or orders entered upon decisions of an appellate division 'finally determining actions or special proceedings.'" It was not the intention "to establish a constitutional right of appeal to the court of appeals from every final judgment or order made by an appellate division, and place it beyond the power of the legislature to abridge it or take it away." Construing the provision that "the legislature may further restrict the jurisdiction of the court of appeals and the right of appeal thereto, but the right to appeal shall not depend upon the amount involved," the court say that "under the general grant of legislative power, it is competent for the legislature to deny the right of appeal to the court of appeals in any class or classes of actions, in its discretion, the only restriction upon the legislative power being that the right shall not be made to depend upon the amount involved;" and the court sustained the amendment of 1896 to § 191 of the Code of Civil Procedure, limiting the right of appeal in actions to recover damages for personal injury. Sciolina v. Erie Preserving Co. (1896) 151 N. Y. 50, 45 N. E. 371.

In Croveno v. Atlantic Ave. R. Co. (1896) 150 N. Y. 225, 44 N. E. 968, the court, sustaining the Code amendment of 1896, say that the "right of appeal . . . is not a natural or inherent right, but