« PředchozíPokračovat »
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. $ 14. 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 subject of the action is within that city (Mchor 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, ? 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). În 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 specific performance of a contract by a religious corporation for the sale of its real estate (Boren 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 Bank, 5 Sand. 423, affirmed in the court of appeals; so said, 4 Duer, 606 ; see Harriott v. N 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. $. courts in admiralty over a question of salvage (Cashmere v. Crowell, 1 Sand. 715; Cashmere v. De Wolf, 2 id. 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 Bronon, 1 Abb. 108; 4 Duer. 613), nor to compel the attendance of witnesses to be ex
amined 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. 44). 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.)
b. 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 vested 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).
e. 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. Sy ooner, 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. Dows, 2 How. 98).
g. The law (Laws 1844, ch. 32) declaring that no habeas corpus or certiorari shall be allowed removing a proceeding before judgment or final decision
from the court of common pleas, applies not only to proceedings in court, but also to all such proceedings as by statute are authorized to be instituted before any judge of the court (Declin v. Platt, 11 Abb. 398), and, therefore, a proceeding before a judge of that court to compel delivery of books, &c., of a public office, cannot, before a final determination thereof, be removed into the supreme court by certiorari (id.).
$ 34. (Am'd 1849.) Common pleas to review certain judgments.
The court of common pleas for the city and county of New York, shall also have power to review the judgments of the marine court of the city of New York, and of the justices' courts in that city.
See sections 427, 352; Hawkins v. Mayor of N. Y., 5 Abb. 344.
$ 35. Terms. Fees.
The superior court of the city of New York, and the court of common pleas for the city and county of New York shall, within twenty days, appoint general and special terms of those courts, respectively, and prescribe the duration thereof; and they may, from time to time, respectively alter such appointments; and hereafter no fees shall be paid for any services of a judge of either of those courts.
$36. By whom held.
A general term shall be held by at least two of the judges of those courts respectively, and a special term by a single judge.
$ 37. Judgments, where given.
Judgments upon appeal shall be given at the general term; all others, at the special term.
$38. Judgment, how pronounced.
The concurrence of two judges shall be necessary to pronounce a judgment at the general term. If two do not concur the appeal shall be reheard.
$ 39. Crier.
A crier shall be appointed by the superior court of the city of New York, and by the court of common pleas for the city and county of New York, respectively, to hold his office during the pleasure of the court. He shall receive a salary, to be fixed by
the supervisors of the city and county of New York, and paid out of the county treasury.
$ 40. Superior Court Judges.
The superior court of the city of New York, shall, from the first day of May, 1849, consist of six justices.
[Sections 41 to 45, inclusive, obsolete.]
$ 46. Terms.
A general term of the superior court may be held by any two of the six justices thereof, and a special term by any one of them; and general and special terms, one or more of them, may be held at the same time.
$ 47. [As am'd Laws 1851, p. 8.] Certain suits may be transferred.
All civil suits at issue at the time of the passage of this act, that from and after the first of May, 1849, shall be placed upon the calendar of the supreme court, at any general or special term thereof to be held in the city of New York, and which shall be in readiness for hearing on questions of law only, or are equity cases, may by an order of that court, or of the judge holding such special term, be transferred to the said superior court of the city of New York, and to be heard at the general terms thereof.
$ 48. Jurisdiction of transferred suits.
The said superior court shall have jurisdiction of every suit so transferred to it, and may exercise the same powers in respect to erery such suit, and any proceedings therein, as the supreme court might have exercised, if the suit had remained in that court.
$ 49. [This section was repealed, Laws 1851, p. 8.]
$ 50. Appeal.
Appeals from the judgments of the superior court in such suits, may be taken to the court of appeals, in the same manner as from the judgments of the superior court in actions originally commenced therein.
$51. Section applied.
The provisions of section twenty-eight of this act, shall apply to the said superior court.
Of the Courts of Justices of the Peace.
SECTION 52. Repeal of existing provisions.
§ 52. (Am'd 1849.) Repeal of existing provisions.
The provisions contained in sections two, three, and four, of the article of the revised statutes entitled, “ Of the jurisdiction of justices' courts," as amended by sections one and two of the act concerning justices' courts, passed May 14, 1840, and the provisions contained in sections fifty-nine to sixty-six of the same [fourth] article, both inclusive, are repealed, and the provisions of this title substituted in place thereof. But this repeal shall not affect any action heretofore commenced in a court of a justice of the peace.
§ 53. (Am'd 1849,1861, 1860, 1861, 1862, 1865.) Jurisdiction.
Justices of the peace shall have civil jurisdiction in the following actions, and no others, excepting as in the second section [of laws of 1861, ch. 158) it is provided :
1. In actions arising on contracts for the recovery of money only, if the sum claimed does not exceed two hundred dollars.
2. An action for damages for injury to rights pertaining to the person, or to personal or real property, if the damages claimed do not exceed two hundred dollars.
3. An action for a penalty not exceeding two hundred dollars.
4. An action commenced by attachment of property, as now provided by statute, if the debt or damages claimed do not exceed two hundred dollars.