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$ 33. (Amd 1849, 1852.) Jurisdiction. Removal of causes.

The jurisdiction of the superior court of the city of New York, of the court of common pleas for the city and county of New York,* of the mayors' courts of cities, and of the recorders' courts of cities, shall extend to the following actions:

1. To the actions enumerated in sections 123 and 124, when the cause of action shall have arisen, or the subject of the action shall be situated, within those cities respectively;

2. To all other actions where all the defendants reside, or are personally served with the summons, within those cities respectively, or where one or more of several defendants, jointly liable on contract, reside, or are personally served with the summons, within those cities respectively; except in the case of mayors’ and recorders' courts of cities, which courts shall only have jurisdiction where all the defendants reside within the cities in which such courts are respectively situated. The supreme court may remore into that court any action brought under this subdivision and pending in the superior court or court of common pleas for the city and county of New York, and may change the place of trial therein, as if such action had been commenced in the supreme court; such order for removal and for change of place of trial to be made in the supreme court upon motion, and on filing a certified copy of such order in the office of the clerk of the superior court, or of the court of common pleas, such cause shall be deemed to be removed into the supreme court, which shall proceed therein as if the same had originally been commenced there; and the clerk with whom such order is filed, must forth with deliver to the clerk of the county in which, by such order, the trial is ordered to be had, to be filed in his office, all process, pleadings, and proceedings relating to such cause. And any action or proceeding pending in any mayor's or recorder's court, in which the judge is

any cause incapable of acting, may by such court be transferred to the county court of the county; and thereupon the papers therein on file in the mayor's or recorder's court shall be transmitted to the county court; which shall thenceforth have jurisdiction of such action or proceeding.

3. To actions against corporations created under the laws of this State, and transacting their general business, or keeping an

for

* See Laws 1870, ch. 86, providing for the election of three additional judges of this court.

the county judge shall from time to time appoint, and may continue as long as the court deem necessay.

Notice of such appointment shall be published in the State paper at least four weeks before any such term, and also in a newspaper, if any, printed in the county ; so many of such terms as the county judge shall designate for that purpose, in such notice, may be held for the trial of issues of law, and hearing and decision of motions, and other proceedings, at which no jury shall be required to attend.

$32. (Am'd 1849.) Jurore.

Jurors for the county courts and courts of sessions shall be drawn from the jury-box of the county, and summoned in the same manner as for the trial of issues at a circuit court.

See Laws 1861, p. 14, ch. 8.

TITLE V.

Of the Superior Court and Court of Common Pleas, in the city of New York,* and the Mayors' and Recorders' Courts in other cities.

*

SECTION 33. Jurisdiction. Removal of causes.

34. Common Pleas for New York to review certain judgments.
35. General and special terms. Fees.
36. By whom held.
37. Judgments, where given.
38. Concurrence of two judges necessary.
39. Criers.
40. Superior Court Judges.
41.

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$ 33. (Am'd 1849, 1852.) Jurisdiction. Removal of causes.

The jurisdiction of the superior court of the city of New York, of the court of common pleas for the city and county of New York, * of the mayors' courts of cities, and of the recorders'

* courts of cities, shall extend to the following actions:

1. To the actions enumerated in sections 123 and 124, when the cause of action shall have arisen, or the subject of the action shall be situated, within those cities respectively;

2. To all other actions where all the defendants reside, or are personally served with the summons, within those cities respectively, or where one or more of several defendants, jointly liable on contract, reside, or are personally served with the summons, within those cities respectively ; except in the case of mayors and recorders' courts of cities, which courts shall only have jurisdiction where all the defendants reside within the cities in which such courts are respectively situated. The supreme court may remore into that court any action brought under this subdivision and pending in the superior court or court of common pleas for the city and county of New York, and may change the place of trial therein, as if such action had been commenced in the supreme court; such order for removal and for change of place of trial to be made in the supreme court upon motion, and on filing a

copy of such order in the office of the clerk of the superior court, or of the court of common pleas, such cause shall be deemed to be removed into the supreme court, which shall proceed therein as if the same had originally been commenced there; and the clerk with whom such order is filed, must forth with deliver to the clerk of the county in which, by such order, the trial is ordered to be had, to be filed in his office, all process, pleadings, and proceedings relating to such cause. And any action or proceeding pending in any mayor's or recorder's court, in which the judge is. for any cause incapable of acting, may by such court be transferred to the county court of the county; and thereupon the papers therein on file in the mayor's or recorder's court shall be transmitted to the county court; which shall thenceforth have jurisdiction of such action or proceeding.

3. To actions against corporations created under the laws of this State, and transacting their general business, or keeping an

certified

* See Laws 1870, ch. 86, providing for the election of three additional judges of this court.

office for the transaction of business, within those cities respectively, or established by law therein, or created by or under the laws of any other State, government, or country, for the recovery of any debt, or damages, whether liquidated or not, arising upon contract made, executed, or delivered within the State, or upon any cause of action arising therein.

a. Superior Court.—The superior court was established by a law passed in 1828 (Laws 1828, p. 141). By sec. 13 the said court shall have no power to send any process into any other county than the city and county of New York, except subpænas. $ 11. Writs of subpæna issuing out of the said court shall be obligatory upon any witness duly served therewith within this State, in like manner as if such writs had been issued out of the supreme court; and obedience to such subpæna may be enforced by attachment. The justices of the said court may perform all the duties which the justices of the supreme court out of term are authorized to do and perform by any statute of this State.

b. Jurisdiction of Superior Court and Common Pleas.The common law jurisdiction of the New York superior court and common pleas, except in its territorial limitation, is co-equal with that of the supreme court; any action triable in the latter is triable in the former, provided the defendant, or one of the defendants, resides, or is served with process, within the city of New York, or where the cause of action arose or the suhject of the action is within that city (Mclror v. McCabe, 16 Abb. 319; Smith v. Butler, 1 Daly, 508; Porter v. Lord, 13 How. 254; 2 Abb. 43; 4 Duer, 682 ; Bates v. Reynolds, 7 Bosw. 685; McKenzie v. Hackstaff, 2 E. D. Smith, 75). They have no jurisdiction to compel a conveyance of land out of the city of New York (Ring v. McCoun, 10 N. Y. 268), or to set aside as fraudulent a conveyance of land out of the State (Bennett v. Erving, 4 Rob. 671; 32 How. 384). But have jurisdiction of an action for breach of covenant to convey land out of the State (Mott v. Coddington, 1 Rob. 267). Their jurisdic. tion includes partition of lands in the city of New York, or the determination of any estate or right in such lands without reference to the residence of the parties (id. ; Varian v. Stevens, 2 Duer, 635; Nichols v. Romaine, 9 How. 512). In all actions except those mentioned in sections 123 and 124 of the code, where there is only a single defendant, he must, to give the New York superior court or New York common pleas jurisdiction, reside in the city of New York, or be served with the summons therein (Kerr v. Mount, 28 N. Y. 659 ; see Zerega v. Benoist, 7 Rob, 199; 33 How. 129). These courts have general equity jurisdiction, and may entertain an action to compel the specitic performance of a contract by a religious corporation for the sale of its real estate (Bouen v. Irish Presbyt. Cong. 6 Bosw. 246), or to compel an executor to account (Christy v. Libby, 35 How. 119). Have jurisdiction of all actions against foreign corporations, where the cause of action upon which the suit is brought arises within the city of New York. In every case a voluntary appearance by the defendant (even without any service of summons) gives the court jurisdiction of the person (Watson v. The Cabot Bark, 5 Sand. 423, affirmed in the court of appeals; so said, 4 Duer, 606 ; see Harriott v. New Jersey R. R. Co. 2 Hilton, 262; 8 Abb. 284 ; Smith v. Dipeer, 2 Code R. 70, and note to section 427, post). Perhaps these courts have concurrent jurisdiction with the U. S. courts in admiralty over a question of salvage (Cashmere v. Crowell, 1 Sand. 715; Cashmere v. De Wolf, 2 il. 379; see, however, Frith v. Crowell, 5 Barb. 209; Baker v. Hoag, 7 N. Y. 563). They have not jurisdiction to appoint a receiver to wind up the affairs of a foreign corporation (Day. v. U. S. Car Spring Co. 2 Duer, 608), nor to issue a commission of lunacy (Re Browon, 1 Abb. 108; 4 Duer. 613), nor to compel the attendance of witnesses to be ex

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amired under a commission from a court of a foreign country (Re Jay, 5 Sand. 674), nor of proceedings for the dissolution of a corporation (Kattenstroth v. Astor Bank, 2 Duer, 632; Brahe v. The Pythagorus A88. 4 Duer, 658; 11 How. 4+). The superior court has jurisdiction of an action for divorce by reason of adultery committed within this state, when the parties to the action were inhabitants of this State, and resided in it when the offense was committed, and continued to reside in it up to the time of suit brought, the defendant then residing in the city of New York (Forrest v. Forrest, 6 Duer, 102; 25 N. Y. 501).

See sections 139 and 427, post.

a. The courts will not sanction any attempt by fraud or misrepresentation to bring a party within the jurisdiction (Carpenter v. Spooner, 2 Sand. 717; Goupil v. Simonson, 3 Abb. 474); thus where by a false statement, made for the purpose, a defendant was induced to come within the city of New York, and was there served with a summons in an action in the superior court, the service was set aside (id.)

6. These courts have the same powers to compel discovery by the parties to a suit pending therein, which are conferred by the revised statutes on the supreme court (Gould v. M'Carthy, 11 N. Y. 575; see note to section 388, post); and the justices of the superior court may issue attachments against absconding, concealed, or non-resident debtors (Renard v. Hargous, 13 N. Y. 259).

c. The common pleas possess all the power and jurisdiction of county courts throughout the State (Wood v. Kelly, 2 Hilton, 334), and on appeal from the marine and justice's courts, all the powers and jurisdiction formerly exercised by the superior court of New York (Wood v. Kelly, 2 Hilton, 334). It has power to commit for the non-payment of a personal tax (Kahn's case, 11 Abb. 147), and each of the associate judges of this court, possesses the power by the revised statutes conferred on the first judge of that court, to compel delivery of books, &c., belonging to a public office (Devlin v. Platt, 11 Abb. 398).

d. The common pleas has jurisdiction of judgments on recognizances docketed with the county clerk under laws of 1844 (Laws 1845, p. 250; Laws 1861, ch. 333); and to remit fines and forfeited recognizances in the same cases and in like manner as such power was heretofore given by law to courts of common pleas; and to correct and discharge the dockets of liens and of judgments entered upon recognizances; and to exercise in the city and county of New York all the powers and jurisdiction now or hereafter conferred upon or rested in the said court, or the county courts in their counties, and the powers and jurisdiction which were vested in the court of common pleas for the city and county of New York before the enactment of the code (Laws 1854 p. 464; see The People v. Lott, 21 Barb. 130).

¿ A judgment entered with the county clerk upon a forfeited recognizance, becomes a lien on real estate from the time of docketing (The People v. Lott, 21 Barb. 130), and is subject to the jurisdiction and control of the New York common pleas as if it had been docketed in it (The People v. Petry, 2 Hilton, 523; The Poeple v. Lott, 21 Barb. 130). In addition, the court has the discretionary power to remit the forfeiture in whole or in part, or to discharge the recognizance upon such terms as appear just and reasonable (The People v. Petry, 2 Hilton, 523).

f. Removal of causes.—The removal of an action from the superior into the supreme court, is within the discretion of the court, and the removal will not be ordered unless upon good cause (Campbell v. Butler, 4 Abb. 55); but the removal is ordered in all cases where sufficient cause for removal is shown (Carpenter v. Spooner, 2 Sand. 717). On a motion to remove an action, the papers should be entitled in the court in which the action is then pending, and out of which the removal is sought (Miller v. Doros, 2 How. 98).

9. The law (Laws 1844, ch. 32) declaring that no habeas corpus or certiorari shall be allowed removing a proceeding before judgment or final decision

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