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courts, in the superior court of the city of New York, in the court of common pleas for the city and county of New York, in the mayors' courts of cities, and in the recorders' courts of cities, and to appeals to the court of appeals, to the supreme court, to the county courts, and to the superior court of the city of New-York.
This section limits the provisions of the code to proceedings in suits commenced, after the code took effect. Merritt v. Wing, 4 Pr. R. 14. Clark v. Crandall, 4 Pr. R. 127, 2 Code Rep. 70. Tusscott v. King, 4 Pr. R. 173. Thompson v. Blanchard, 4 Pr. R. 260. Doty v. Brown, 4 Pr. R. 429. The superior court bowever, proceeding on the principle, that an appeal is in some respects a new action, have held, contrary to the decisions in the supreme court, that in a suit commenced bofore the code took effect, in which an appeal is brought aster the code took effect, this section extends the provisions of the code to the proceedings and costs on such appeal. Kanouse v. Martin, 2 Sandf. s. C. R. 739, 741, 3 Code Rep. 203. In Overseers of Clay ton v. Beedle, 1 Barb. S. C. R. 11, Allen, J., following the dicta of Jewett and Cowen, JJ., in McDonald v. New York City Savings Bank, 2 How, Pr. R. 35, and Moore v. Cooley, 2 Hill, 412, held, that a writ of error was not a suit or action.
OF THE COURTS OF JUSTICE AND THEIR JURISDICTION.
I. OF THE COURTS IN GENERAL.
or New YORK, AND THE MAYORS' AND RECORDERS' COURTS IN
Of the Courts in general.
10. Their jurisdiction.
5 9. [9.] The several courts.—The following are the courts of justice of this State:
1. The court for trial of impeachments. 2. The court of appeals. 3. The supreme court. 4. The circuit courts. 5. The courts of oyer and terminer. 6. The county courts. 7. The courts of sessions. 8. The courts of special sessions. 9. The surrogates' courts. 10. The courts of justices of the peace. 11. The superior court of the city of New-York. 12. The court of common pleas for the city and county of
New-York. 13. The mayors' courts of cities. 14. The recorders' courts of cities.
15. The marine court of the city of New-York.
§ 10. (10.] Their jurisdiction generally. These courts shall continue to exercise the jurisdiction now vested in them respectively, except as otherwise prescribed by this act.
The Court of Appeals.*
12. Power of court.
§ 11. (11.) (Amended.)—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 court of common pleas of the city and county of New-York, in the following cases, and no other :
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.
3. In a final order affecting a substantial right, made in a special proceeding, or upon a summary application in an action, after judgment:
4. In an order granting a new trial, but such an appeal shall not be allowed in an action originallly commenced in a court of a justice of the peace, or in the marine court of the city of New-York,, or in an assistant justice's court of
* See Rules in Appendix and laws of 1847, pp. 263, 306, 312, 313, 320, 322, 425, 426, 555, 638.
that city,* or in a justice's court of any of the cities of this State.
The amendment is the addition of the parts printed in italic, and the omission wbere the asterisk is placed, of the words “or the municipal court of the city of Brooklyn."
In addition to the jurisdiction conferred by this section, this court has jurisdiction of all cases pending in the late court for the correction of errors on the first Monday of July 1847, and on that day transferred to this court by the constitution, and now remaining undetermined. (Laws of 1847, p. 322, s. 12.) See Section 460 of this code, and note.
By this section, the court has authority to review, only actual determinations of the inferior court, that is, questions upon which the inferior court has actually passed, per Allen, J., Raynor v. Clark, 3 Code Rep. 230, 231, 7 Barb. S. C. R. 581, and only determinations " hereafter made," which means after the code took effect, per Bronson, J., in Rice v. Floyd, 1 Code Rep. 112, 3 Pr. R. 366, 368.
The words in this section, « brought there from another court,” have been held to include suits pending in the late court of chancery, on the first Monday of July, 1847, and transferred to the supreme court, by force of the coustitution, (ART. xiv. s. 5.) where the decree was made after the code took effect, and that suits transferred might well be considered as suits brought. Farmer's Loan g. Trust Co. v. Carroll, 4 Pr. R. 211, 212, 2 Code R. 138.2 Coms. 566.
The right to review on appeal to the court of appeals a final order, judgment, or decree, made prior to July, 1848, as also the time and manner of prosecuting the appeal, depend on the old law. Mayor of New York v. Schermerhorn, 1 Code Rep. 100. ` 3 Pr. R. 334. 1 Coms. 423.
But when such order, &c., is made after 1st of July, 1848, whether the suit was commenced before or after that day, the right to appeal, &c., depends upon the code. Ibid-. Selden v. Vermilya, 1 Code Rep. 110. 3 Pr. R. 338. 1 Coms. 534.
This section repeals sections 5 and 10 of the Judiciary act, (Laws of 1847, p. 639,) giving an appeal from the decisions of the supreme court, granting or refusing a new trial on a bill of exceptions. Tilley v. Phillips, 3 Pr. R. 364. i Code Rep. 111. 1 Coms. 610, and see also, Grover v. Coon, 3 Pr. R. 341. 1 Code Rep. 96. Selden v. V'ermilya, 3 Pr. R. 342. 1 Code Rep. 110. Anon. 1 Code Rep. 101; but where an appeal from the decision of the supreme court, granting a new trial on a bill of exceptions, was taken under the judiciary act before the Code went into effect, the court had authority to decide such appeal after the code took effect. Butler v. Miller 3 Pr. R. 339. i Code Rep. 110.
It has been decided that no appeal will lie to the court of appeals in the following cases:
Where there was a verdict and judgment without any exceptions or proceedings intermediate the verdict, and filing the judgment record ; and an appeal was brought upon the judgment. The suit was commenced prior to 1st July, 1848, but the verdict and judgment were obtained after that time. Lake v. Gibson, 3 Pr. R. 420.
Upon a mere question of costs. Sherman v. Daggett, 3 Pr. R. 426.
From a decision on a motion to set aside a judgment or decree, either for irregularity or as matter of favor. Sherman v. Felt. 3 Pr. R. 425.
To review a judgment upon a report of referees, upon a case containing merely the evidence before the referees, and the same used before the supreme court. Sturgess v. Merry, 3 Pr. R. 418.
From the decision of the supreme court on a case; there must be a bill of exceptions or special verdict. So held, where there was a trial in an action of ejectment, and a verdict taken subject to the opinion of the supreme court upon a case to be made, which was made, and the general term gave judgment for the defendant on the case—which order was appealed to this court. Wright v. Douglas, 3 Pr. R. 418.
From a judgment except upon a bill of exceptions or special verdict, presenting questions of law. So held, where there was a trial before a justice, without a jury, and a case made, upon which the general term denied a new trial, which was incorporated in the record, and appealed to this court. Livingston v. Radcliff, 3 Pr. R. 417.
From an order of the supreme court at a general term denying a rehearing of an order made at a special term, where the order made at special term is such as would not be reviewed by this court on appeal if confirmed by the general term. Marvin v. Seymour, 1 Code Rep. 111,3 Pr. R. 340. 1 Coms. 535.
Thus, where a motion was made at a special term for an order to compel one of the complainants to appear and submit to an examination before a master to whom the cause had been referred, and was denied ; and an appeal then taken to the general term, where a rehearing was devied, held, not an appealable case to this court, even if the general term had confirmed the order. Ib.
From an order on a rehearing at a general term of the supreme court vacating an order of reference to ascertain the amount of damages occasioned by a temporary injunction. Anon. 4 Pr. R. 80.
From an order setting aside a decree of divorce taken as confessed and allowing alimony. Carpenter v. Carpenter, 2 Code Rep. 83. 4 Pr. R. 139.
From a decision on a motion to dissolve a temporary injunction. Vandewater v. Kelsey, 2 Code Rep. 3. 3 Pr. R. 338. Selden v. Vermilya, 1 Code Rep. 110. 3 Pr. R. 338. 1 Coms. 534.
From the verdict of a jury upon a question of fact, upon the trial of which there is a question as to the credibility of a witness by which it is sought to be proved. Rice v. Floyd, 4 Pr. R. 27. 1 Coms. 608. 1 Code Rep. 112.
From an order made upon a bill of exceptions, under the act of December, 1847, where the order was made after the 1st of July, 1848 ; although the suit may have been commenced prior to that time. Tilley vs. Phillips, 1 Code Rep. 111. 3 Ps. R. 364. i Coms. 610.
From a final judgmeut order or decree made in a cause before 1st of July, 1948, except by writ of error under the old law. Rice v. Floyd, 1 Code Rep. 112. 4 Pr. R. 27. 1 Coms 608.
From an order setting aside an answer as frivolous, and that the plaintiff have judgment as for want of an answer, and a further order that the defendant submit to an examination on oath concerving his property, and the judgment to be given on the complaint. It is not the final judgment in the action. Dunham v. Nicholson, 2 Code Rep. 70, 4 Pr. R. 140.
From an order at special term without first being reheard at general term. Gracie v. Pierson, 3 Pr. R. 218. i Coins. 228. Mayor of New York v. Scher. merhorn, 1 Code Rep. 109. 3 Pr. R. 334. 1 Coms. 423.
On reversal by supreme court of judgment of common pleas on bill of exceptions contained in the record as an appeal under act of Dec. 1847. Fargo v. Brown 3 Pr. R. 294. 1 Coms. 429.
From an order of the Chancellor deciding a motion to open the biddings at a master's sale. Hazleton v. Wakeman, 3 Pr. R. 457.
From an order of the supreme court at general term reversing a judgment obtained at the circuit and ordering a new trial. Duane v. Northern R. Ř. Co., 3 Code Rep. 72. 4 Pr. R. 364. 3 Coms. 545.
From an order awarding or refusing an issue to be tried at law, and the granting or refusing a new trial. Lansing v. Russell, 4 Pr. R. 213.
Are such orders subject to review when the final order on the merits is considered. Ib.
From a decree which directs a reference for the purpose of taking an account between the parties, and for other purposes, and reserves further directions until the coming in and confirmation of the report, and then, “that such further order and decree may be made thereon as shall be just,” is not a final decree. Cruger v. Douglas, 2 Code Rep. 119. 4 Pr. R. 215. Harris v. Clark, 2 Code, Rep. 47. 4 Pr. R. 18.
From an order made at the general term of the supreme court, comfirming an order vacating a master's or receiver's sale. It was a matter in the discretion of the
Wakeman v. Price, 3 Code Rep. 186. 2 Coms. 334. From an order made at the general term of the supreme court confirming an order which denied a motion to set aside a judgment entered on a warrant of attorney, before the code went into effect. Dunlop v. Edwards, 3 Code Rep. 197. Coms. 341.
From a decision at the circuit on a caso. So held where a case was inserted in