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of the supreme court, and the circuit courts, and courts of oyer and terminer, and of the judges who shall hold the same, are repealed from and after the first day of July, 1848; and

the submission provides for judgment in the county court. (Burnside v. Whit ney, 21 N. Y. 148.)

a. An application to sell the real estate of a religious corporation may be made to the supreme court. (Wyatt v. Benson, 23 Barb. 327; 4 Abb. 182. See Code s. 30, subd. 9, and see supreme court rule regulating the application, in Appendix.)

b. The statutory powers of the supreme court may be exercised by the court at either a general or special term, unless there be some statute specially restricting the court. (Tracy v. Talmage, 1 Abb. 463.) Its jurisdiction in the matters of street openings in the city of New York, is exercised as a court, and not as a tribunal of inferior jurisdiction. (In re Canal street, 2 Kernan, 406.)

c. The supreme court cannot by certiorari arrest a special proceeding instituted before a judge of another court, prior to any final determination of the matter. (Devlin v. Pratt, 11 Abb. 398.)

d. The who'e power of the court to order the sale of the lands of infants is derived from the statute. (Onderdonk v. Mott, 34 Barb. 106.)

Transfer of causes to :

e. As to the transfer of causes to the supreme court from the New York Superior Court and Court of Common Pleas, see section 33, post; from the Superior Court of Buffalo, see Laws 1857, vol. 1, p. 755; and from county courts see section 30, subd. 13 post; and in actions or proceedings in the City Court of Brooklyn, or before the City Judge of Brooklyn, in which the said City Judge shall have acted as attorney or counsel, or shall be interested, or in which he would be excluded as a juror by reason of consanguinity or affinity to either party, may be transferred to the supreme court and tried in the county of Kings on the judge making a certificate stating the facts, and filing said certificate with the county clerk of Kings county. (Laws 1861, ch. 86)


f By Laws of 1847 (p. 326, s. 22), these courts have the same powers, and exercise the same jurisdiction, as that possessed and exercised by the circuit courts then existing, so far as they were consistent with that act; and all laws relating to the former circuit courts were made applicable to the present circ courts, so far as the same were consistent with that act. Hardly any step, except to try or refer, can be taken at the circuit in a cause pending in the supreme court (Mann v. Taylor, 1 Code R. N. S. 383); and except to grant a new trial on the judge's minutes. See Moffat v. Ford, 14 Barb. 577.


g. The oyer and terminer in the several counties is a permanent and continuous court. Its successive sessions are terms of the same and not distinct tribunals. The oyer and terminer has no power to order a new trial upon the merits, after a conviction for felony. (The People v. Appo, 20 N. Y. 531; affirming S. C. 18 How. 350, and see The People v. Dutchess Oyer and Terminer, 2 Barb. 282.)


h. In what cases: A cause may be removed from a state court into a U. S. circuit court where (1) the parties plaintiff and defendant are citizens each of a different state, and (2) where the sum or value in dispute exceeds $500. The manner of removal is by filing, at the time of entering an appearance in the State court, a petition and bond on behalf of the petitioner to enter process at the next term of the circuit court (1 U. S. Stat. at large, 78; and see Act of Congress of March 3, 1863; and Jones v. Seward, 26 How. 33; 40 Barb. 563, reversed 26 How. 433; and Wood v. Matthews, 2 Blatchford C. C. Rep. 370).

the order of the supreme court adopted July 14, 1847, prescribing the times and places of holding the general and special terms of the court, and the circuit courts, and courts of

The value in dispute is determined by the amount originally claimed in the suit and the defendant's right to removal cannot be taken away by allowing the plaintiff to amend by reducing his claim to less than $500 (Disbrow v. Driggs, 8 Abb. 306 note, and cases there cited).

If some, only, of the defendants reside out of the State, no removal can be had (Fairchild v. Durand, 8 Abb. 305; Prentis v. Brennan, 2 Blatchford 162), and where three aliens and one citizen of New York united in a suit against a Connecticut corporation, it was held there could be no removal (Denniston v. N. Y. & N. Haven R. R. Co., 2 Abb. 278; 415; 1 Hilton, 62; and see Leonard v. Jamison, 2 Edw. Ch. 136).

The court will not order the removal of an action by an assignee of a promissory note brought to recover damages for not properly presenting and protesting said note (Anderson v. Manufacturer's Bank, 14 Abb. 436), nor an action to enjoin a party from prosecuting an action (Rogers v. Rogers, 1 Paige, 183).

An outstanding injunction does not prevent the removal (Byam v. Stevens, 4 Edw. Ch. 119).

A foreign insurance company created by the laws of another state, but doing business in this state, in compliance with our laws, on being sued by a citizen of this state, cannot remove the cause on the ground of its being a citizen of another state (Stevens v. Phœnix Ins. Co., 24 How. 517).

In an action in which a corporation is a party, if some of the corporators are citizens of the same state with the adverse party, the cause cannot be removed (North River Steamboat Co. v. Hoffman, 5 Johns. Ch. 300.)

A proceeding to charge joint debtors under section 375 of the Code, cannot be removed (Fairchild v. Durand, 8 Abb. 305).

When there are two circuit courts within the state, the court below may remove the cause to either (Suydam v. Smith, 1 Denio, 263; Norton v. Hayes, 4 Denio, 245).

a. The petition. The statute does not state what the petition shall contain. It should, however, contain a statement of the facts necessary to authorize a removal. It must state the petitioner is a citizen of another state. To say he is a resident is not sufficient (Corp v. Vermilye, 3 Johns. 145). If the statement of a material fact is accidentally omitted, the omission may be supplied by amendment (Field v. Blair, 1 Code Rep. N. S. 362). The petition need not De signed by the petitioner personally. The signature of the attorney is sufficient (Vandevoort v. Palmer, 4 Duer, 677).

b. The bond.—The bond need not be executed by the petitioner. Execution by the sureties is sufficient (Vandevoort v. Palmer, 4 Duer, 677). The bond should he several, as well as joint (Roberts v. Cannington, 2 Hall, 649). A bond in a penalty of $1000, held sufficient (Blanchard v. Dwight, 12 Wend, 192). In that case $14,000 was claimed, but defendant had not been arrested. In Jones v. Seward, 26 How. 436, the court say: "I think the court should not approve any sureties unless the amount of the bond is equal to the sum in which the defendant has been held to bail.

c. Appearance.-Filing notice of appearance with the clerk is an appearance entered (Field v. Blair, 1 Code Rep. Ñ. S. 292); so is a motion to discharge from arrest (Dart v. Arnis, 19 How. 429), or resisting a motion for an injunction (Cooley v. Lawrence, 5 Duer, 605; 12 How. 176); but giving bail on arrest is not (Durand v. Hollins, 3 Duer, 686); nor is a mere notice of appearance or retainer (Field v. Blair, 1 Code Rep. Ñ. S. 292; Norton v. Hayes, 4 Denio, 245). There must be some act done and entered in court (id.). One defendant may appear and defend alone to enable him to remove the cause (Livingston v. Gib bona, 4 Johns. Ch. 94; Norton v. Hayes, 4 Denio, 245).

oyer and terminer, during the residue of the year 1847, and for the years 1848 and 1849, and assigning the business and duties thereof to the several judges of the court, is, from and after the first day of July, 1848, abrogated, and the provisions of this title are substituted in place thereof.

a. Motion for order. The application for the order is usually on notice, or order to show cause (Disbrow v. Driggs, 8 Abb. 306 n.), but where an order issued er parte, the court refused to vacate it on appeal. (See Illius v. N. Y. & N. H. R. R. Co., 3 Kernan, 597.) On the motion the plaintiff may, by affidavits, contradict any fact stated in the petition, or state new facts (Denniston v. N. Y. & N. H. R. R. Co., 2 Abb. 278; 415; Disbrow v. Driggs, 8 Abb. 306 n.).

b. Form of order to shoo cause, and for removal.-See Carpenter v. N. Y. &. N. H. R. R. Co., 11 How. 485, 486. No order for removal, however, seems necessary (id.). Where an injunction has issued, the order may provide that it shall not operate to dissolve the injunction (Liddle v. Thatcher, 12 How. 294).

c. On a defendant complying with the statute requirement, the state court has no discretion in the matter, but the cause is removed, and any subsequent proceeding in the state court would be void for want of jurisdiction (see Livermore v. Jenks, 11 How. 479, and cases there cited; and see Hill v. Henderson, 6 Sme. and M. 351). Except that any attachment which has been issued is by the statute to continue in force until the final judgment in the circuit court. The court has jurisdiction of any proceeding in relation to the attachment (Carpenter v. N. Y. & N. H. R. R. Co., 11 How. 481).

d. Filing petition.-The petition to remove must be filed at the time of, and not after, entering an appearance. If no appearance has been entered, and the plaintiff has taken no step towards entering judgment, the defendant may re move the cause, although the time to answer has expired (Carpenter v. Ñ. Y. & N. H. R. R. Co., 11 How. 481; Redmond v. Russell, 12 Johns. 153; Roberts v. Cannington, 2 Hall, 649).

e. Proceedings after order for removal.-After the order is made, the defendant is to perfect the proceedings by appearing in the circuit court before the next term of that court, and entering special bail where an order of arrest had issued in the state court, and filing copies of the process (Martin v. Kanouse, 1 Blatchf. C. C. R. 149), and the plaintiff must file a new declaration in the cir cuit court (Clarke v. Protection Ins. Co., id. 150). After removal, all proceedings must be according to the rules of the court into which the cause is removed; the code has no application to such causes (Suydam v. Ewing, 1 Code Rep. N. S. 294).

f. It seems a State court cannot entertain a motion to vacate an order of removal to the U. S. courts after the cause has been transmitted to the circuit court. The appropriate place for such a motion, which, in effect, is to remand the cause to the State court, is in the forum where the cause is pending. So held by Davies, J., in Disbrow v. Driggs; and see Jones v. Seward, 26 How. 436.

g. On the removal of a cause, certified copies of the process and papers by which the suit was commenced in the State court, should be sent to and entered in the United States court (Martin v. Kanouse, 1 Blatch. C. C. Rep. 149). On the entry of such copies the plaintiff must file a new declaration in the United States Court (Clarke v. Protection Ins. Co., 1 Blatch. C. C. Rep. 150). Can the United States court send the cause back to the State Court? (Van Zandt v. Maxwell, 2 Blatch. C. C. Rep. 421.)

h. There can be no review in the court of appeals of an order at chambers not appealed from in the court below, denying a motion to remove a cause into the United States circuit court (Kanouse v. Martin, 6 How. 240; Illius v. N. Haven R. R. Co., 3 Kernan, 597).


18. [16.] (Am'd 1849.) General terms.

At least four general terms of the supreme court shall be held annually in each judicial district, and as many more as the judges in such districts shall appoint, at such times and places as a majority of the judges of such district shall appoint.

a. General terms of the supreme court held in the city of Albany, may be held at the capitol, or the city hall. (Laws 1849, ch. 82, p. 117.)

The general term is an appellate court, and stands in the same relation to the special term as an appellate court does to courts of original jurisdiction. (Yates v. The People, 6 Johns. 334; Harris v. Clark, 10 How. 415.)

b. Although there are general terms and special terms of the supreme court, there is but one supreme court (Ayres v. Covill, 9 How. 573; Corning v. Powers, ib. 54; Gracie v. Freeland, 1 Coms. 228; Mason v. Jones, 1 Code Rep. N. S. 338), and the special term has jurisdiction to set aside an order made at general term on a default or on the ground of any irregularity in making the order. "It is only when the relief sought affects the adjudication at the general term, that it is necessary to apply to the general term for relief. Where the motion is upon the ground of irregularity in obtaining the judgment or order at general term, and the point was not before the court, or if the judgment or order was regular and the party seeks relief by excusing his default, I see no reason why the application should not be at special term. It is different where the motion necessarily requires a reconsideration of the adjudication at the general term." (Hand, J., in Ayres v. Covill, supra.) On an appeal to the general from the special term, the special term has no authority to entertain or decide a motion to dismiss the appeal. Such a motion can only be heard at a general term. (Harris v. Clark, 10 How. 415.)

See further, note to section 20, infra.

§ 19. [17.] Judgment, how given.

The concurrence of a majority of the judges holding a general term, shall be necessary to pronounce a judgment. If a majority do not concur, the case shall be reheard.

e. A judge of the supreme court who has not heard the argument of a cause, is competent to sit with two others who heard it, for the purpose of constituting a court, and the decision of a cause made by a court thus constituted-the judge who did not hear the argument taking no part in the decision-is valid. As it was the duty of the three judges who heard the argument to consult together in relation to the decision, it is to be presumed that they did so, and that the decision subsequently announced is the result of such consultation. (Corning v. Slosson, 16 N. Y., 294.)

§ 20. [18.] (Am'd 1849.). Special terms, &c.

There shall be at least two terms of the circuit court and court of oyer and terminer held annually in each of the counties of this State, and as many more terms thereof, and as many special terms, as the judges of each judicial district shall appoint therein; but at least one special term shall be held annually in each of said counties. Fulton and Hamilton shall be considered one county for the purposes of this section.

a. The constitution (art. vi. sect. 6), prescribes by what justices the general and special terms shall be held, but "it leaves their powers to be prescribed by the legislature." (Griffin v. Griffith, 6 How. 428.)

b. The distinction between the power of the court at special and general terms was discussed in the case of Garcie v. Freeland, 1 Coms. 228, and again in Mason v. Jones, 1 Code Rep. N. S. 338. The special term is the supreme court as well as the general term; and, unless the law or the constitution points out a limit, it has the same powers. The special term now hears every question, except on appeal, that could come before the general term-questions as to the opening of streets, as to granting mandamus or certiorari; and has even quashed a certiorari allowed ex parte at the general term, and its decision was not appealed from. An application to amend a judgment at general term, for irregularity merely, may be made at special term (De Agreda v. Mantel, 1 Abb. 133; Corning v. Powers, 9 How. 54); but the special term cannot, on motion, set aside as erroneous a judgment entered on report of a referee. (Dana v. Howe, 3 Kernan, 308.)

c. There is but one supreme court, which acts and decides; whether it acts through the special term or the general term, its powers are the same. None of the ancient powers of the general term are taken from it; and it can therefore make an original order in any matter (as for re-taxation of costs) in which it might formerly have made such order. The code specifies the manner in which appeals should be brought before the general term, but does not attempt to limit its powers. (Anon. 10 How. 353.)

See note to section 18, ante.

§ 21. [19.] (Am'd 1849.) Circuit and oyer and terminer together.

Circuit courts, and courts of oyer and terminer, shall be held at the same places, and commenced on the same day.

§ 22. [23.] (Am'd 1849.) Times and places of holding


The governor shall, on or before the first day of May, 1848, by appointment in writing, designate the times and places of holding the general and special terms, circuit courts, and courts of oyer and terminer, and the judges by whom they shall be held; which appointment shall take effect on the first day of July thereafter, and shall continue until the thirty-first day of December, 1849. The judges of the supreme court of each district, shall, in like manner, at least one month before the expiration of that time, appoint the times and places of holding those courts for two years, commencing on the first day of January, 1850, and so on, for every two succeeding years, in their respective districts.

§ 23. [24.] Extraordinary terms, &o.

The governor may also appoint extraordinary general and special terms, circuit courts, and courts of oyer and terminer, whenever, in his judgment, the public good shall require it.

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