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 8 191 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

rests upon the statute alone, and may be taken away by the legislature, unless conferred by the organic law of the state." In this case the judgment was entered on the 12th of May at 1:50 p. m., and the Code amendment limiting the right of appeal was approved by the governor on the same day, but there was nothing to show at what time on that day the bill was approved. The act took effect immediately. The court say "it seems to be settled by the weight of authority that, in the absence of evidence as to the precise time when approved, an act operates during the entire day of its approval" (citing numerous decisions), and the act amending the Code was therefore held to have taken effect at the commencement of the day on which it was approved by the governor, and was in force in the afternoon when the judgment was entered.

See also People ex rel. Public Charities & C. Comrs. v. Cullen (1897) 153 N. Y. 629, 44 L. R. A. 420, 47 N. E. 894, sustaining the act of 1895, chap. 601, enlarging the jurisdiction of the court of appeals by authorizing it to hear and determine an appeal from an order made by a New York city magistrate convicting a party as a disorderly person. Subject to the limitations that the jurisdiction of the court of appeals must be confined to questions of law, and that in some cases the unanimous decision of the appellate division is made final, “it is entirely competent for the legislature to provide for a review in this court of any question of law involved in a judgment after a hearing in the appellate division. The power to further restrict appeals does not, by any fair or reasonable implication, exclude the power to enlarge the jurisdiction by providing for a review of certain judgments of inferior courts that were not reviewable before."

Prior to the revised Constitution of 1894 the legislature had power to regulate the appellate jurisdiction of the court of appeals. Butterfield v. Rudde (1874) 58 N. Y. 489; People ex rel. Grissler v. Fowler (1874) 55 N. Y. 675.

The following cases relate to the jurisdiction of the court as declared by this section. Many of them include questions of procedure, and should be consulted for further details: People v. Schoonmaker (1872) 50 N. Y. 499 (order dissolving injunction); People v. American Loan & T. Co. (1896) 150 N. Y. 117, 44 N. E. 949 (order directing the payment of a claim by a receiver of an insolvent domestic corporation); Szuchy v. Hillside Coal & I. Co. (1896) 150 N. Y. 219, 44 N. E. 974 (unanimous decision of the appellate division affirming order denying motion for nonsuit); Otten v. Manhattan R. Co. (1896) 150 N. Y. 395, 44 N. E. 1033( appeal

involving questions of fact); People ex rel. Manhattan R. Co. v. Barker (1897) 152 N. Y. 417, 46 N. E. 875 (special proceedings); Peri v. New York C. & H. R. R. Co. (1897) 152 N. Y. 521, 46 N. E. 849 (attorney's lien); Re Green (1897) 153 N. Y. 223, 47 N. E. 292 (transfer tax); People v. Helmer (1897) 154 N. Y. 596, 49 N. E. 249 (review only questions of law); Re Kimball (1898) 155 N. Y. 62, 49 N. E. 331 (foreign divorce); People ex rel. Broadway Improv. Co. v. Barker (1898) 155 N. Y. 322, 49 N. E. 884 (tax assessment); Hirshfeld v. Fitzgerald (1898) 157 N. Y. 166, 46 L. R. A. 839, 51 N. E. 997 (reversal by appellate division on question of law and of fact); Johnstown v. Wade (1898) 157 N. Y. 50, 51 N. E. 397 (condemnation); Ayres v. Delaware, L. & W. R. Co. (1899) 158 N. Y. 260, 53 N. E. 22 (presumption of sufficient evidence on unanimous affirmance by appellate division); Steamship Richmond Hill Co. v. Seager (1899) 160 N. Y. 312, 54 N. E. 574 (reversal of order vacating execution against the person); Reed v. McCord (1899) 160 N. Y. 330, 54 N. E. 737; Marden v. Dorthy (1899) 160 N. Y. 39, 46 L. R. A. 694, 54 N. E. 726; Meserole v. Hoyt (1899) 161 N. Y. 59, 55 N. E. 274 (questions of evidence not reviewable); Mundt v. Glokner (1899) 160 N. Y. 571, 55 N. E. 297 (stipulation for judgment absolute); Malone v. Saints Peter & Paul's Church (1902) 172 N. Y. 269, 64 N. E. 961 (compulsory reference in action by administrator).

"Where the appellate division allows an appeal and certifies a question of law for us to review, the presumption is that its determination was made upon the merits, unless it expressly appears by the record that it was made in the exercise of discretion." Re Davies (1901) 168 N. Y. 89, 56 L. R. A. 855, 61 N. E. 118.

Appeals to the court of appeals are limited to three classes of cases; namely, "final judgments in actions, final orders in special proceedings, and orders granting new trials on exceptions where the appellant stipulates that on affirmance judgment absolute shall be rendered against him." This limitation manifestly applies to civil cases only. The court sustained an appeal by the people from an order of the appellate division reversing a conviction for grand larceny. People v. Miller (1901) 169 N. Y. 339, 88 Am. St. Rep. 546, 62 N. E. 418.

§ 10. [Judges not to hold any other office.]-The judges of the court of appeals and the justices of the su

preme court shall not hold any other office or public trust. All votes for any of them, for any other than a judicial office, given by the legislature or the people, shall be void.

[Const. 1777, art. 28; 1821, art. 5, § 7; 1846, art. 6, § 8; Jud. Art. 1869, § 10.]

"The terms 'office' and 'public trust' have no legal or technical meaning distinct from their ordinary signification. An office is a public charge or employment, and the terms seems to comprehend every charge or employment in which the public are interested. The words 'public trust,' still more comprehensive, appear to include every agency in which the public, reposing special confidence in particular persons, appoint them for the performance of some duty or service." Re Wood (1823) 2 Cow. 29, note; Re Attorneys (1823) 20 Johns. 492, states a similar definition, and holds that lawyers are not public officers.

In Re Hathaway (1877) 71 N. Y. 238, the court defined the term "office" as "that function by virtue whereof a person has some employment in the affairs of another, and it may be public or private, or quasi public, as exercised under public authority, but yet affecting only the affairs of particular individuals.. 'Public office,' as used in the Constitution, has respect to a permanent trust to be exercised in behalf of the government or of all citizens who may need the intervention of a public functionary or officer, and in all matters within the range of the duties pertaining to the character of the trust. It means a right to exercise generally, and in all proper cases, the functions of a public trust or employment, and to receive the fees and emoluments belonging to it, and to hold the place and perform the duty for the term and by the tenure prescribed by law." A commissioner appointed in a probate proceeding to act in the place of the surrogate, who was disqualified, did not hold a public office.

A commissioner appointed by the supreme court for the appraisal of certain lands, and who took the oath of office as such, held a public office, and, upon his subsequent election as a justice of the supreme court, was disqualified from further acting as commissioner. The position of commissioner was clearly a public trust. His election as a judge created a vacancy in the land commission, and the two other commissioners could not proceed until the

vacancy had been filled. Re Gilroy (1896) 11 App. Div. 65, 42 N. Y. Supp, 640.

The statutes conferring on the supreme court power to appoint commissioners of estimate and assessment in street opening cases in New York did not violate this section. The statutes do not confer on the members of the court any office, new or old. The powers are vested in the court, and not in the justices individually. The Constitution does not restrain the legislature from enlarging the powers of the court. The chancellor and circuit judges had frequently been vested with power to appoint commissioners, and similar duties have often been imposed upon the supreme court. Striker v. Kelly (1844) 7 Hill, 9. See also Embury v. Conner (1850) 3 N. Y. 511, 53 Am. Dec. 325.

In Re Cooper (1860) 22 N. Y. 67, the court considered the nature of the power exercised by the supreme court upon the admission of attorneys and counselors, saying that it had been suggested that such power was executive rather than judicial, and might be conferred upon any other branch of the government as well as upon the judiciary. Replying to this suggestion the court say that the "lines between the various departments [of government] are not and cannot well be very precisely defined, and there are many duties which may be with equal propriety referred to either. . . The same power which, when exercised by one class of officers not connected with the judiciary, would be regarded and treated as purely administrative, becomes at once judicial when exercised by a court of justice. . . The principle to be deduced . . . is that where any power is conferred upon a court of justice to be exercised by it as a court, in the manner and with the formalities used in its ordinary proceedings, the action of such court is to be regarded as judicial, irrespective of the original nature of the power."

The act of 1858, chap. 338, which authorized a justice of the supreme court at special term or in vacation to take proof as to frauds in assessments for local improvements in New York, and vacate the assessment, did not confer on the justices any additional office or public trust. The jurisdiction was summary, but not new. Re Beckman (1860) 19 How. Pr. 518.

The designation of a judge of the court of appeals as a member of a commission to appraise certain relics of the late General George Washington, which had been offered for sale to the state, did not confer upon him an additional office or public trust within the meaning of the Constitution. The other members of the commission