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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, 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,

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).

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.


§ 13. (Am'd 1851, 1852, 1858, 1859, 1862, 1863, 1865, 1869.) Preference of causes.

There shall be four terms of the court of appeals in each year, to be held at the Capitol, in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the last Tuesday of September, and continued for as long a period as the public interests may require. But the judges of said court may, in their discretion, appoint one of said terms in each year to be held in the city of New York. Additional terms shall be appointed and held at the same place by the court when the public interest requires it. The court may, by general rules, provide what causes shall have a preference on the calendar. On a second and each subsequent appeal to the court of appeals, or when an appeal has once been dismissed for defect or irregularity, the cause shall be placed upon the calendar as of the time of filing the first appeal, and may be noticed and put on the calendar for any succeeding term; and whenever, in any action or proceeding in which the people of this State, or any State officer, or any board of State officers, is or are sole plaintiff or defendant, an appeal has been or shall be brought from any judgment or order for or against him or them, in any court, such appeal shall have a preference in the supreme court and in the court of appeals, and may be moved by either party out of the order on the calendar.

And actions in which one of two or more plaintiffs or defendants shall have died pending the action, and the pendency of the action prevents a final settlement of the estate of the deceased party, shall be preferred on the calendar.

For other preferred cases see Rule XIII. Court of Appeals, post.

§ 14. (Am'd 1849, 1851, 1867.) Judgment. Rehearing. Opinions. The concurrence of five judges is necessary to pronounce a judgment. If five do not concur, the case must be reheard. But no more than two rehearings shall be had; and if on the second rehearing five judges do not concur, the judgment shall be affirmed.

When five of the judges do not concur, and a rehearing of the case is ordered, the judges shall file the opinions read by them with the reporter of the court, but such opinions shall not be published. No person other than the judges of the court, the reporter of the court, or the counsel or attorney of either of the parties to

the action shall have access to, or a copy of, the said opinions, but such counsel or attorney may have access to and a copy thereof.

a. This section does no more than declare the common law rule (Mason v. Jones, 3 N. Y. 375; and see Goddard v. Coffin, Davies' U. S. Dist. Rep. 381).

b. Affirmance.-A judgment of affirmance, in the absence of dissent, is an affirmance of the precise proposition decided by the court below (Green v. Clark, 13 Barb. 57). An affirmance, upon an equal division of the court, merely determines the particular case, and leaves the questions involved in it open for consideration in any future case in which they may arise (Morse v. Goold, 11 N. Y. 281; The People v. Mayor of New York, 25 Wend. 252).

c. Not to go behind decision.-Where judgment is pronounced in open court without any dissent at the time, neither party can attack the judgment on the ground of what may have taken place among the judges in private (Mason v. Jones, 3 N. Y. 375; Oakley v. Aspinwall, ib. 547).

§ 15. Sheriff to provide rooms, &c.

If, at a term of the court of appeals, proper and convenient rooms, both for the consultation of the judges and the holding of the court, with furniture, attendants, fuel, lights, and stationery, suitable and sufficient for the transaction of its business, be not provided for it in the place where by law the court may be held, the court may order the sheriff of the county to make such provision, and the expense incurred by him in carrying the order into effect shall be a county charge.

§ 16. (Am'd 1851.) Court, where held. Adjournment.

The court of appeals may be held in other buildings than those designated by law as places for holding courts, and at a different place, in the same city, from that at which it is appointed to be held. Any one or more of the judges may adjourn the court, with the like effect as if all were present.



Of the Supreme Court, Circuit Courts, and Courts of Oyer and


Existing statutory provisions, as to terms, &c., repealed. 18. General terms.

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17. (Am'd 1849.)


All statutes now in force, providing for the designation of the times and places of holding the general and special terms 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 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 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.

See now laws, 1870, ch. 408; and see Northrup v. The People, 37 N. Y.



a. Jurisdiction of the Supreme Court.-The supreme court has all the powers of the supreme court and the former court of chancery (Onderdonk v. Mott, 34 Barb. 106; Myers v. Rasback, 4 How. 83; Myers v. Borland, id.; and see ante p. 13, b., and the constitution, art. vi. secs. 3-6; 2 R. S. 259, s. 1; ib. 234, s. 60; Laws 1847, p. 323, s. 16; Laws 1848, p. 282; Laws 1849, p. ib. p. 117; ib. p. 150; Laws 1850, p. 20; ib. p. 9; Laws 1851, p. 308; Laws 1852, p. 591; Laws 1853, p. 526).

b. The supreme court has jurisdiction of an action in the nature of a suit in equity where the amount in dispute is less than $100 (Laws 1862, p. 859, s. 39; Laws 1863, p. 664, s. 2; and see Mallory v. Norton, 21 Barb. 424; Braman v. Johnson, 26 How. 27, and Sarsfield v. Vaugner, 15 Ább. 65; 38 Barb. 444, rev's'g S. C. 14 Abb. 297; and Shepard v. Walker, 7 How. 46; Cobine v. St. John, 12 How. 337, 576; Marsh v. Benson, 34 N. Y. 358; 11 Abb. 241 and note; Durham v. Willard, 19 How. 425). In Sarsfield v. Vaugner (supra) the value of the property in dispute was less than $50.

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