Obrázky stránek

The supreme court may decree the cancellation of a void mortgage which is a cloud on property out of the State (William8 v. Ayrault, 37 N. Y. 444), It may determine the validity of any actual or alleged devise or will of real estate (Laws 1853, p. 526), and may vacate the entry of satisfaction of a final decree of the court of chancery, entered prior to 1846. It has power to authorize the leasing or sale and conveyance of the real estate of benevolent, charitable, scientific, missionary societies or orphan asylums (Laws 1861, ch. 58). It has the power to exercise such control over every proceeding in it, as to protect every person interested from injustice and fraud, and will not allow itself to be made the instrument of wrong (Lowler v. Mayor of N. Y. 26 Barb. 262; Barton v. Butts, 32 How. 456).

An action upon an award may be brought in the supreme court, although the submission provides for judgment in the county court (Burnside v. Whitney, 21 N. Y. 148).

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). 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 Canal Street, 12 N. Ý. 406; Re Seventh Ave. 29 How. 180). It cannot by certiorari arrest a special proceeding instituted before a judge of another court, prior to any final determination of the matter (Derlin v. Pratt, 11 Abb. 398.) The whole power of the court to order the sale of the lands of infants is derived from the statute (Onderdonk v. Mott, 34 Barb. 106).

a. Transfer of causes to Supreme Court.- 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 1851, vol. 1, p. 755; and from county courts, see section 30, subd. 13 prost; 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 (Laws 1861,

b. Conciliation.—Transfer of causes from courts of conciliation (Laws 1865, ch. 556).

6. Circuits.-By Laws of 1847 (p. 326, s. 22), these courts have the same powers, and jurisdiction, as the circuit courts then existing; and all laws relating to the former circuit courts were made applicable to the present circuit courts. Hardly any step, except to try or refer, can be taken at the circuit (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). REMOVAL OF CAUSE FROM STATE COURT INTO U. S.

CIRCUIT COURT. d. In what cases. A cause may be removed from a State court into a U. 8. circuit court. (1) If the suit is against an alien ; (2) by a citizen of the State in which the suit is brought against a citizen of another State where the sum or value in dispute exceeds $500. But no district or circuit court can take cognizance of any suit to recover the contents of any promissory note or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court, to recover the said contents, if no assignment had been made. 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 Wood v. Mattheros, 2 Blatchford C. C. Rep. 370; Patrie v. Murray, 29 How. 312; 43 Barb. 323; Benjamin v. Murray, 28 How. '193; Jones v. Sercard,

ch. 86).

[ocr errors][merged small][ocr errors][ocr errors]

41 Barb. 269; 17 Abb. 377; Ayres v. West. R. R. Co. 32 How. 351. See acts of Congress of 1863, 1866, 1867).

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 (Disbrou v. Driggs, 8 Abb. 306, note; Kanouse v. Martin, 15 How. U. S. Rep. 257).

If some, only, of the defendants reside out of the State, no removal can be had (Fairchild v. Durand, 8 Abb. 305 ; Prentis v. Brannan, 2 Blatchford, 162); and where three aliens and one citizen of New York united in a suit against a Connecticut corporation, it was beld 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 refused to 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). In Ayres v. West. R. R. Co. (48 Barb. 132; 32 How. 351), it was held that an action by a citizen of this State, as assignee of a foreign corporation, against another foreign corporation, upon a claim against the defendant, as a common carrier, to recover the value of goods entrusted to it to carry, could not be removed, such a claim being a chose in action. But see a note of the case of Bushnell v. Kennedy, in supreme court of U. S. (1 Albany Law Jour, 339); there Kennedy and others, as assignees, commenced a suit in a state court against Bushnell, a non-resident. The cause was removed to the circuit court, and remanded, for want of jurisdiction, to the State court. The supreme court reversed this decision, holding that the restriction upon the exercise of jurisdiction by the circuit court, in a suit to recover the contents of a chose in action in favor of an assignee, unless the suit might have been prosecuted in that court by the assignor, does not extend to a suit commenced in a State court, by a citizen of the State in which the suit is brought against a citizen of another State (and see Deshler v. Dodge, 16 How. U. S. Rep. 622).

An action to enjoin the prosecution of another action cannot be removed (Rogers v. Rogers, 1 Paige, 183). Nor can an action in which plaintiff and defendant are both non-residents of the State in which the action is brought (Smith v. Butler, 38 How. 192). An outstanding injunction does not prevent the removal (Byam v. Stevens, 4 Edw. Ch. 119).

A foreign corporation, having an agent, and doing business in this State, if sued by a citizen of this State, may remove the action (Fisk v. Chicago R. R. Co. 53 Barb. 472; 3 Abb. N. S. 453; Kranshaar v. N. Haven Steamboat Co. ng Rob. 356).

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. Huyes, 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 be 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 be 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 says: "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.”

[merged small][ocr errors][merged small][ocr errors][ocr errors]

How. 481).

[ocr errors][ocr errors]

a. Appearance.-Filing notice of appearance with the clerk is an appearunce entered (Fiell v. Blair, 1 Code Rep. N. 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. N. 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 (Liringston v. Gibbons, 4 Johns. Ch. 94 ; Norton v. Hayes, 4 Denio, 245).

b. Motion for Order.-The application for the order should be on notice, or order to show cause (Disbrow v. Driggs, 8 Abb. 306, n.; Bristol v. Chapmin. 34 How. 140). 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; Disbror v. Driggs, 8 Abb. 306, n.).

6. Form of order to show Cause, and for Removal.-See Carpenter v. N. Y. & N. H. R. R. Co. 11 How. 485, 486. Where an injunction has issued, the order may provide that it shall not operate to dissolve the injunction (Liddle v. Thatcher, 12 How. 294).

d. 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: Hill v. Henderson, 6 Sme. and M. 351). Except that any attachment which has been issued continues in force until the final judgment in the circuit court. The court has jurisdiction of any proceed. ing in relation to the attachment (Curpenter v. N. Y. . N. H. R. R. Co. 11

4. 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 remove the cause, although the time to answer has expired (Carpenter v. N. Y. & N. H. R. R. Co. 11 How. 481; Redmond v. Russell, 12 Johns. 153; Roberts 5. Cannington, 2 Hall, 649).

f. 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 circuit court (Clarke v. Protection Insurance 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. 8. 294).

g. It seems a State court cannot entertain a motion to vacate an order of removal to the U. 8. 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 (Distroud v. Driggs; and see Jones v. Seward, 26 How. 436).

h. 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 courts (Clarke v. Protect: In Ins. Co. id. 150). Can the United States court send the cause back to the State court ? (Van Zandt v. Maxwell, 2

1. There can be no review in the court of appeals of an order at chambers

appealed from in the court below, denying a motion to remove (Kanouse v. Ma tin, 6 How. 240; Illius v. N. Haren R. R. Co. 13 N. Y, 597); semble, such an order does not involve a “substantial right” (id.), and doubted if order for removal can be reviewed at general term Fargo v Mc Vickar, 38 How. 1).

id. 421).


$ 18. (Am'd 1849.) General terms.

General terms.—This section is abrogated by laws 1870, ch. 408. This law abrogates all general terms of the supreme court and divides the State into four departments.

The first to consist of the first judicial district, the second of the second judicial district, the third of the third, fourth, and sixth judicial districts, and the fourth of the fifth, seventh and eighth judicial districts. General terms are to be held in New York on first Mondays in January, February, April, June, September and November; in Brooklyn, on second Tuesdays in January, April, September and December; in Poughkeepsie on second Tuesday in June. In third department: in Albany first Tuesdays in February and October; in Plattsburgh on first Tuesday in July; in Elmira on first Tuesdays in April and September; in Binghamton on first Tuesdays in June and December; in Ogdensburgh on first Tuesday in November. In fourth department : in Syracuse on first Monday in May and second Monday in November; in Oswego on first Monday in October; in Rochester on first Mondays in January, March and September; in Buffalo on first Mondays in February and June. Such general terms have all the powers of pre-existing general terms, and all laws relating to general terms not inconsistent with the constitution and that act apply to the new general terms. Causes and matters in the new general terms are to be entitled in the supreme court. The associate justices designated to any department may sit in any other department. The governor may appoint extraordinary general terms.

The general term is an appellate court, and stands in the same relation to the special term as an appellate court does to urts of original jurisdiction (Yates v. The People, 6 Johns. 334; Harris v. Clark, 10 How. 415); and see Brotherson v. Consalus, 28 How. 117; Opening Seventh Avenue, 29 How. 180).

a. Although there are general terms and special terms of the supreme court, there is but one supreme court (Ayres v. Corill, 9 How. 573; Corning v. Poroers, ib. 54; Gracie v. Freeland, 1 N. Y. 228; Mason v. Jones, 1 Code Rep. N. S. 338). The special term bas jurisdiction to set aside an order made at general term on a default or on the ground of any irregularity in making the order (id.), but not to modify a general term judgment (Sheldon v. Williams, 52 Barb. 183).

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. Clurk, 10 How. 415).

See, further, note to section 20, infra.

$ 19. Judgment, how given.

This section is also abrogated by Laws 1870, ch. 408, s. 6, which provide that the concurrence of two justices shall be necessary to pronounce a decision. If two do not concur a re-argument may be ordered. In case of such disagreement, if one of the three justices shall not be qualified to sit, the cause may be directed to be heard in another department.

$ 20. (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.

2. Power of Court. The distinction between the power of the court at special and general terms was discussed in the case of Gracie v. Freeland, 5 N. Y. 238, and again in Mason v. Jones, 1 Code Rep. N, S. 338 ; Anon. 10 How. 353; Tracy v. Talmage, 1 Abb. 463. 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, 13 N. Y. 308).

See note to section 18, ante.

$ 21. (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. (Am’d 1849.) Times and places of holding court.

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 over 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

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.


Modified by laws 1870, ch. 408.

$23. Extraordinary terms, &c. 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.

b. Transfer of causes. Whenever an action in the supreme court cannot be brought to argument and decision in the

district where the same is pending, by reason of the justices of such district, or any of them, having been

« PředchozíPokračovat »