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$ 10. Jurisdiction of courts generally. These courts shall continue to exercise the jurisdiction now vested in them respectively, except as otherwise prescribed by this


a. Priority of Jurisdiction.-If two actions between the same parties, and upon the same subject matter, are brought in two different courts, the court which first acquires jurisdiction should dispose of the whole controversy (Mc Carthy v. Peake, 9 Abb. 164).

6. Courts have' Jurisdiction.-Foreign governments may sue and be sued in the courts of this state in their federative name (Republic of Mexico v. Arrangois, 11 How. 1; 2 Abb. 437; 3 id 470; Manning v. State of Nicaragua, 14 How. 517; Delafield v. State of Illinois, 26 Wend. 192; Burrall v. Jewett, 2 Paige, 134, Gibson v. Woodworth, 8 id. 132 ; The People of Michigan v. Phæniz Bank, 4 Bosw. 382); but the court refused to entertain a suit against residents of this State, which affected property held by the defendants merely as agents of a foreign government (Leavitt v. Dabney, 3 Abb. N. S. 469; 37 How. 264; 7 Rob. 350).

Of actions by citizens of this state against foreign railroad corporations (Fisk v. Chicago & Rock Island R. R. 53 Barb. 513).

Of actions on contracts made out of the State (Winter v. Baker, 50 Barb. 432 ; Skinner v. T'inker, 34 Barb. 333).

Although a State of the United States has adopted an ordinance of secession, it may nevertheless sue in the courts of this State (U. S. v. Victor, 16 Abb. 153).

Of an action against officers of the United States Government in certain cases, -see Ripley v. Gelston, 9 Johns. 201 ; Re Stacey, 10 id. 328; Hoyt v. Gelston, 13 id 141 ; Wilson v. McKenzie, 7 Hill, 95; Teall v. Felton, 1 Barb. 537; McButt v. Murray, 10 Abb. 196.

Of actions on bonds given for duties to the U. S. (U. 8. v. Dodge, 14 Johns. 95).

On actions by collectors of U. S. customs upon receiptor's agreement for safe-keeping of forfeited goods (Sailly v. Cleveland, 10 Wend. 156).

Of actions for torts at sea (Perciral v. Hickey, 18 Johns. 257; and see Norion v. Hullett, 16 id. 327; Wilson v. McKenzie, 7 Hill, 95; Gardner v. Thomas, 14 Johns. 134); or in a foreign State or country, where defendant is served with process within this State (McIvor v. McCabe, 16 Abb. 320 : 26 How. 257; Smith v. Bull, 17 Wend. 323; Lister v. Wright, 2 Hill, 320; Beach v. Bay State Co. 27 Barb. 248; 6 Abb. 415 ; 16 How. 1; and see Armstrong v. Foote, 11 Abb. 384 ; 19 How. 237; Martin v. Hill, 12 Barb. 631 ; De Witt v. Buchanan, 54 Barb. 31, and Molony v. Dous, 8 Abb. 316; Hull v. Vreeland, 18 Abb. 182Latourette v. Clarke, 45 Barb. 327; S. C. is erroneously reported 30 How. 242; Armstrong v. Foote, 11 Abb. 384).

Of actions against national banks, located out of the State (Cooke v. State National Bank of Boston, 50 Barb. 339).

Of actions respecting real estate out of this State (Watts v. Kinney, 6 Hill, 82; 23 Wend. 484; Mussina v Belden, 6 Abb. 165; Ward v. Arredondo, Hopk. 213; Shattuck v. Cassidy, 3 Edw. 152; Slatter v. Carroll, 2 Sandf. Ch. 573; De Klyn v. Watkins, 3 id. 185 ; D'Ivernois v. Leavitt, 23 Barb. 63; Bailey v. Rider, 10 N. Y. 363; Gardner v. Ogden, 22 N. Y. 327'; Newton v. Bronson, 13 N. Y. 587; Fenner 'v. Sar.born, 37 Barb. 610; Williams v. Ayrault

, 31 Barb. 364 ; 37 N. Y. 444; but see Áurd v. Miller, 2 Hilton, 540; Mott v. Coddington, 1 Abb. N. S. 290).

Of an action upon a policy of insurance issued within this State by a resident agent of a foreign insurance company (Burns v. Provincial Ins. Co. 35

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Barb. 325; and see Watson v. Cabot B'k, 5 Sand. 423; affirmed in the court of appeals, so said, 4 Duer, 606, and see post, sec. 427).

a. The courts have not jurisdiction to entertain an action brought against the State itself, except as authorized by statute (Kiersted v. The People, 1 Abb. 385; Garr v. Bright, 1 Barb. Ch. 157).

Of an action in which a foreign consul is defendant, either alone or with others (Sippile v. Albites, 5 Abb. N. S. 77; Rock River Bank v. Hoffman, 14 Abb. 72); and it is no answer to an application to vacate the proceedings in such an action, that since the action was commenced the exequator of the said consul has been revoked (id.); nor, in the case of a consul sued jointly with others, can the State court retain jurisdiction of the action by striking out the name of the consul, and proceeding against the other defendants (id ; and see Taaks v. Schmidt, 19 How. 413). The exemption of a consul is not personal, and he cannot waive it (Valarino v. Thompson, 7 N. Y. 576; and see 1 Barb. 449; 1 Sand. 690).

To restrain the prosecution of an action in another State (Williams v. Ayrault, 31 Barb. 364; Mitchell v. Bunch, 2 Paige, 606; Meade v. Merritt, id. 402; Baily v. Rider, 10 N. Y. 363; see, bowever, Field v. Holbrook, 3 Abb. 377; McKee v. Voorhier, 7 Cranch, 279; Phelan v. Smith, 8 Cal. 520; Diggs v. Wolcott, 4 Cranch, 179; Hill v. Hill, 28 Barb. 23; and see in note to $ 219, post).

To declare void a proceeding in a court of another State (Hill v. Hill, 28 Barb. 23), unless there is an attempt to enforce such proceeding in a court of this State (id. ; Dobson v. Pearce, 12 N. Y. 156).

Of an action on contract against an Indian (Hastings v. Farmer, 4 N. Y. 293).

The courts of this state will not enforce the penal laws of the United States (U. S. v. Lathrop, 17 Johns. 9), nor of any other State (Scoville v. Canfield, id. 338), nor a foreign bankrupt or revenue law (Mosselman v. Caen, 34 Barb. 66; Skinner v. Tinker, 34 Barb. 333).

Nor adjudicate on the right to salvage (Baker v. Hoag, 7 N. Y. 563; Frith v. Crowell, 5 Barb. 209; see, however, Cashmere v. Croweli, 1 Sand. 715; Cashmere v. De Wolf, 2 id. 379).

For damages for infringement of a patent (Burrall v. Jewett, 2 Paige, 134), or copyright (Dudley v. Mayhew, 3 N. Y. 9), or where the existence and valid ity of a patent for invention must necessarily be shown to enable the plaintiff to recover (Tomlinson v. Battell, 4 Abb. 266); nor of actions against foreign executors or administrators (Metcalf v. Clark, 41 Barb. 45), unless residents of this State (Gulick v. Gulick, 33 Barb. 92 ; 21 How. 22; Montalvan v. Clover, 32 Barb. 190; and see Sere v. Coit, 5 Abb. 482, and post, in note to $ 142, subd. 1, Executor or Administrator.

Nor to discharge on habeas corpus persons detained under the authority of the United States (Re Hopson, 40 Barb. 84; Re Barrett, 42 Barb. 479; Reilly's Case, 2 Abb. N. S. 334; O Connor's Case, 3 Abb. N. 8. 137; 48 Barb. 258).

Nor over lands ceded by the State to the United States (Dibble v. Clapp, 31 How. 420).

As to the territorial jurisdiction of the State,-see 1 R. S. 61; Manley v. The People, 7 N. Y. 297; The People v. Hulse, 3 Hill, 309.

As to the jurisdictions of the several courts, see post, titles II. III. IV. V. VI. VII.

b. Actions and proceedings against the Mayor, &c., of New York.-The supreme court in the first district has exclusite jurisdiction of all actions against the mayor, aldermen, and commonalty of said city (Laws 1867, p. 1606, sec. 6; Laws 1860, ch. 379. See The People v. The New York & Harlem R. R. Co. 26 How. 54).

No action or special proceeding can be maintained against said mayor, &c., unless it “appear by, and as an allegation in,” the complaint or moving papers, that at least twenty days have elapsed since the claim, on which such action or proceeding is founded, was presented to the comptroller of said city for adjustment, and that, upon a second demand in writing being made on said comptroller, after the expiration of said twenty days." said comptroller "neglected or refused to make an adjustment or payment” of said claim.

Judgment for plaintiff in any such action or proceeding, carries costs without regard to the amount of the recovery (Laws 1860, p. 645, s. 2).

In the adjustment of claims by the comptroller, he may administer oaths to claimants and witnesses, and examine them on all matters pertinent to the claim (id. s. 3).

All process and papers for the commencement of actions and proceedings against the corporation of said city, must be served on the mayor, comptroller, or counsel to the corporation (id. s. 4).

No execution can be levied on the property of said city until after ten days' notice in writing of the issuing said execution has been given to the comptroller of said city (id. s. 5).

This is a public statute and 'need not be pleaded (Bretz v. Mayor of N. Y. 4 Abb. N. 8. 258; 35 How. 130).

Laws 1868, pp. 20–22, s. 8, re-enact the said law of 1860, and authorize the comptroller to borrow money to pay judgment; and Laws 1868, p. 2032, s. 2, enact that no judgment against the county of New York shall be valid unless the claim on which it was recovered had been previously presented to the supervisors. And no execution is to issue on judgment against said Mayor, &c., until after ten days' notice to the comptroller.

4. Municipal corporations.-As to costs and as to appeals in actions against municipal corporations, -see Laws 1859, ch. 262, s. 2; Laws 1858, ch. 334, in notes to sections 303, 323, and 354, post.


The Court of Appeals.*

SECTION 11. Its jurisdiction.

12. Power of court.
13. Terms. Preference of causes.
14. Judgment, how given.
15. Sheriff to provide rooms, &c.

16. Court, where held, adjournment. 8 11. (Am'd 1849, 1861, 1852, 1887, 1862, 1865, 1866, 1867, 1869, 1870.) Jurisdiction.

The court of appeals shall have exclusive jurisdiction to review upon appeal every actual determination hereafter made at a general term by the supreme court, or by the superior court of the city of New York, or the court of common pleas for the city and county of New York, or the superior court of the city of Buffalo,t in the following cases, and no other :

* See Rules in Appendix ; Laws of 1870, ch. 86, providing for the election of a chief judge, and six associate judges; and Laws of 1870, ch. 203, relating to the court of appeals, and the commission of

appeals. † Laws 1857, vol. i. p. 753, § 3.

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1. In a judgment in an action commenced therein or brought there from another court; and upon the appeal from such judgment, to review any intermediate order involving the merits, and necessarily affecting the judgment.

2. In an order affecting a substantial right made in such action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action; and when such order grants or refuses a new trial, or when such order strikes out an answer, or any part of an answer, or any pleading in an action; but no appeal to the Court of Appeals from an order granting a new trial, on a case made, or bill of exceptions, shall be effectual for any purpose, unless the notice of appeal contain an assent on the part of the appellant, that, if the order be affirmed, judgment absolute shall be rendered against the appellant. Upon every appeal from an order granting a new trial, on a case made or on exceptions taken, if the court of appeals shall determine that no error was committed in granting the new trial, they shall render judgment absolute upon the right of the appellant; and after the proceedings are remitted to the court from which the appeal was taken, an assessment of damages or other proceedings to render judgment effectual, may be then and there had in cases where such subsequent proceedings are requisite.

3. In a final order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, and upon such appeal to review any intermediate order involving the merits and necessarily affecting the order appealed from. But such appeal shall not be allowed in an action originally commenced in a court of a justice of the peace, or in a marine court of the city of New York, or in an assistant justice's court of that city, or in a justice's court in any of the cities of this State, unless any such general term shall, by order duly entered, allow such appeal before the end of the next term after which such judgment was entered. The foregoing prohibition shall not extend to actions discontinued before a justice of the peace and prosecuted in another court, pursuant to sections sixty and sixtyeight of this Code.

Whenever the decision of any motion heretofore made, or of any motion hereafter to be made, in the supreme court of this State, at a special term thereof, involves the constitutionality of any law of this State, or has been or shall be placed in the opinion or reasons for such decision, of the justice making such decision,

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upon the unconstitutionality of such law, then an appeal shall lie and may be made from such decision, or from the order entered or to be entered upon such decision, to the general term of said court, and an appeal shall also lie and may be made from the decision of such general term, and from any order entered or to be entered thereon, to the court of appeals ; provided, however, that the time for appealing from such decision, or from such order, shall not be extended hereby.

And such appeal at the general term, and at the court of appeals, shall be heard as a nonenumerated motion.

4. In an order affecting a substantial right, not involving any question of discretion, arising upon any interlocutory proceedings, or upon any question of practice in the action, including an order to strike out an answer or any part of an answer, or any pleading in an action, such appeals, whether now pending or hereafter to be brought, may be heard as a motion, and noticed for hearing for any regular motion day of the court.

We have with some hesitation retained the portion of this section printed in italic-not being satisfied if it was or was not struck out by the recent amendment.

a. Other jurisdiction. This court has also jurisdiction of all cases pending in the late court of errors on the first Monday of July, 1847 (Laws of 1847, p. 322, s. 12); and this court, or any judge thereof, may order the due enrollment, or amend the enrollment of any order or decree of the late court of chancery (Laws of 1853, p, 820; and see note to s. 333. post; and see Laws 1847, p. 320, ss. 4, 13; ib. p. 638, ss. 1, 23).

b. Leave to appeal justice's judgment.-Leave to appeal to the court of appeals from a judgment in the New York common pleas, in an action commenced in an inferior court, will only be granted where the case involves great interests, or settles a principle of law affecting the decision of numerous other cases (Jackson v. Purchase, 1 Hilton, 357; 14 How. 230; and see Palmer v. Moeller, 9 Abb. 20, note; 2 Hilton, 421'; Drucker v. Patterson, 2 Hilton, 135; Clapp v. Graves, id. 243).

2 c. The time fixed for the allowance of an appeal to the court of appeals in an action originating in a justice's court, cannot be enlarged (Wait v. Van Allen, 22 N. Y. 319).

d. Order for new trial.—The provision requiring the court, on appeals from orders granting new trials, on deciding against appellant, to render judgment absolute, leaves no discretion in the court (The People v. Lacoste, 37 N. Y. 197).

$ 12. Power of the court.

The court of appeals may reverse, affirm, or modify, the judgment or order appealed from, in whole or in part, and as to any or all of the parties; and its judgment shall be remitted to the court below, to be enforced according to law.

Union Bank v. Bush, 3 Trans. Ap. 241.

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