This section does not conflict with the provision in 5 of this article relating to appeals from the Buffalo municipal court. Boechat v. Brown (1896) 9 App. Div. 369, 41 N. Y. Supp. 467.

The act of 1896, chap. 378, providing for special jury commissioners in New York to be appointed by the justices of the appellate division, did not violate this section of the Constitution. People v. Hall (1901) 169 N. Y. 184, 62 N. E. 170.

Other powers of justices.—A justice of the appellate division cannot receive a verdict, even by consent of counsel. "The purpose of the Constitution was to absolutely divorce the justices of the appellate division from all connection with the trial courts, except as to motions submitted by consent of counsel, and the command of the Constitution is clear and imperative. The jurisdiction exercised by justices of the supreme court as to proceedings in trial courts ceased upon their becoming justices of the appellate division." French v. Merrill (1898) 27 App. Div. 612, 50 N. Y. Supp. 776.

A justice of the supreme court, before whom an action had been tried but not decided, was temporarily designated to the appellate division. This suspended his powers as a trial justice, but it was held that upon the revocation of the designation he again became fully vested with jurisdiction of the case, and might decide it with the same effect as if the designation to the appellate division had not been made. Irving Nat. Bank v. Moynihan (1903) 78 App. Div. 141, 79 N. Y. Supp. 528; Kane v. Hutkoff (1902) 38 Misc. 678, 78 N. Y. Supp. 262.

Presiding justice.-The presiding justice of the appellate division succeeds to the jurisdiction previously exercised by the presiding judge of the general term of the New York court of common pleas in relation to the examination of accounts of committees of incompetent persons. Re Arnold (1902) 76 App. Div. 126, 78 N. Y. Supp. 772.

Quorum.-"A quorum of four justices, holding an appellate division, are, in contemplation of law, the appellate division, and .. their unanimous vote of affirmance is a compliance with the provisions of the Constitution and Code. . . . A quorum is the number of the members of a body competent to transact business." A constitutional provision that four justices shall constitute a quorum in effect confers on four the powers with which five are invested. "A judicial or legislative body having a quorum present proceeds ordinarily as if every member was sitting in his place, and exercises all the powers with which it is invested. Any other rule would greatly embarrass the transaction of business in case

of illness or voluntary or enforced absence among the members." Harroun v. Brush Electric Light Co. (1897) 152 N. Y. 212, 38 L. R. A. 615, 46 N. E. 291.

Terms and assignments.-This section does not in terms confer on the justices of the appellate division power to assign to duty in their department a justice of the supreme court residing in another department, and such an assignment cannot be regarded as made under the provisions of the Constitution and of § 232 of the Code of Civil Procedure; yet it may be treated as an invitation to hold such term, and if the justice so assigned accepts the invitation he has full authority to hold such term. Section 6 confers on each justice of the supreme court general authority to hold court in any county. People v. Herrmann (1896) 149 N. Y. 190, 43 N. E. 546.

The jurisdiction conferred on the justices of the appellate division to appoint terms and designate justices therefor is not exclusive, and does not conflict with the power conferred on the governor by the Code of Civil Procedure to appoint extraordinary terms of the different branches of the supreme court. People v. Young (1897) 18 App. Div. 166, 45 N. Y. Supp. 772.

§ 3. [Judge not to sit in review of his own decision ; proceedings in law and equity.]—No judge or justice shall sit in the appellate division or in the court of appeals in review of a decision made by him or by any court of which he was at the time a sitting member. The testimony in equity cases shall be taken in like manner as in cases at law; and, except as herein otherwise provided, the legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it has heretofore exercised.

[Const. 1846, art. 6, § 10; Jud. Art. 1869, § 8.]

The rule that a judge shall not sit in review of a decision rendered by him had a colonial origin. The instructions from the home government to Sir Henry Moore, who became governor of New York in November, 1765, contained a provision which had long

been in force in the colony, authorizing an appeal from local courts to the governor and council in cases involving large amounts, with the further right of appeal to the King in council. Judges were sometimes members of the colonial council and the instructions specifically provided that in case of appeals from courts of which such judges were members they "shall not be permitted to vote upon the said appeal, but they may nevertheless be present at the hearing thereof to give the reasons of the judgment given by them in the causes wherein such appeals shall be made." I have not had access to all the instructions issued to all the colonial governors, but this is the earliest instance I have found in which members of the council were prohibited from sitting in review of decisions rendered by them while members of a judicial tribunal. The above rule was repeated in the instructions to Governor Tryon in 1771, and was continued in substance in article 32 of the first Constitution, relating to the court for the correction of errors, where the chancellor and judges of the supreme court were required to give the reasons for their decisions from which an appeal had been taken, but they had no voice in determining the appeal. The Constitution of 1821, article 5, § 1, contained the same provision.

In Re Members of Court of Errors (Chancellor's Case) (1830) 6 Wend. 158, the court for the correction of errors held that the chancellor might sit in review of a decision rendered by him while acting as circuit judge, and that the provision of the Revised Statutes, 2 Rev. Stat. 275, § 3, prohibiting a judge of an appellate court from sitting in review of a decision rendered by him while a member of another court, was unconstitutional as applied to a judge who afterwards became chancellor.

The Constitution of 1846 did not continue the prohibition contained in former Constitutions. This abroga

tion of the prohibition was considered in Pierce v. Delamater (1847) I N. Y. 17, where it was held that it was the right and the duty of a judge of the court of appeals to take part in the determination of causes brought up for review from a subordinate court of which he was a member, and in the decision of which he took part in the court below. Judge Bronson, who had come into the court from the supreme court, and who wrote the opinion, expressed some views quite different from those which prevailed in earlier days, and which are now deemed controlling on this subject. He said:

"There is nothing in the nature of the thing which makes it improper for a judge to sit in review upon his own judgments. If he is what a judge ought to be,— wise enough to know that he is fallible, and therefore ever ready to learn; great and honest enough to discard all mere pride of opinion, and follow truth wherever it may lead; and courageous enough to acknowledge his errors, he is then the very best man to sit in review upon his own judgments. He will have the benefit of a double discussion. If right at the first, he will be confirmed in his opinion; and if wrong, he will be quite as likely to find it out as any one else."

Judge Bronson and three other judges took part in reviewing appeals from decisions rendered by other courts of which they were members.

The Convention of 1867 restored the prohibition, and it was included in the judiciary article adopted in 1869.

The rule prohibiting a judge from sitting in review of his own decision was construed and affirmed in Real v. People (1870) 42 N. Y. 270; Pistor v. Hatfield (1871) 46 N. Y. 249; Duryea v. Traphagen (1881) 84 N. Y. 652; and also in Van Arsdale v. King (1897) 152 N. Y. 69, 46 N. E. 179, where it is said that "litigants are entitled to have their appeals heard and determined by a constitutional court."

This rule was held not to apply where the justice who sat in the general term had made an ex parte order which had been vacated by another judge and the appeal was from the latter order. The first order was not under review by the general term. Philips v. Germania Bank (1887) 107 N. Y. 630, 13 N. E. 923.

In Farmers' Nat. Bank v. Houston (1887) 44 Hun, 567, the court considered the provision relating to the method of taking testimony in equity cases, and said: "This does not mean that equity cases shall be tried by a jury. The difference in the two courts as to the manner of taking testimony had previously been this: In courts of law the witnesses were produced, sworn, and examined before the tribunal which was to decide. In courts of equity witnesses were examined before an examiner, and only their written testimony was presented to the tribunal. It was this difference which was abolished by the Constitution." The court has no power to direct that testimony taken before a referee in a foreclosure action be used upon the trial.

The legislature has power to regulate the issues in equity cases. Eggers v. Manhattan R. Co. (1891) 21 N. Y. Civ. Proc. Rep. 403, 42 N. Y. S. R. 123, 18 N. Y. Supp. 181.

§ 4. [Vacancies in supreme court.]—The official terms of the justices of the supreme court shall be fourteen years from and including the first day of January next after their election. When a vacancy shall occur otherwise than by expiration of term in the office of justice of the supreme court 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, which 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, § 9.]

A justice of the supreme court resigned the day before election