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§ 9. All laws relating to the clerk of the court of appeals, his powers and duties, shall be applicable to the clerk appointed under the constitution, except so far as they may be inconsistent with the sixth article of the constitution or this act.
§ 10. This act shall take effect immediately.
LAWS OF NEW YORK.-CHAP. 408.
AN ACT relating to the Supreme Court and to the election of a Judge of the Court of Common Pleas in and for the City and County of New York.
PASSED April 27, 1870; three-fifths being present.
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
SECTION 1. The general terms of the supreme court, as organized under existing laws, are abrogated from and after the first day of May next; and thereafter all causes and matters then pending in such general terms, or which, according to law, might be brought before them, shall be cognizable before the general terms organized under this act. Provided, nevertheless, that the said general terms of the supreme court as now organized shall meet on some day to be designated by the justices composing the same, for the purpose of deciding all matters pending before them on the said first day of May, and that appeals may be taken from the judgments and orders entered on such decisions, in the same manner as in like cases from the judgments and orders of the general terms organized under this act.
§ 2. The State is hereby divided into four departments. The first department shall consist of the first judicial district; the second department of the second judicial district; the third department of the third, fourth, and sixth judicial districts; and the fourth department of the fifth, seventh, and eighth judicial districts. The general terms shall be held in each year in the first department at the court house in the city of New York on the first Tuesdays in January, February, April, June, September, and November: in the second department, at the court-house in the city of Brooklyn on the second Tuesdays in January, April, September, and December; and at the court-house in the city of Poughkeepsie on the second Tuesday in June: in the third de
partment, at the capitol in the city of Albany on the first Tuesdays in February and October; at the court-house in the village of Plattsburgh, in the county of Clinton, on the first Tuesday in July; at the court-house in the city of Elmira on the first Tuesdays in April and September; at the court-house in the city of Binghampton on the first Tuesdays in June and December; and at the court-house in the city of Ogdensburgh on the first Tuesday of November: in the fourth department, at the court-house in the city of Syracuse on the first Monday in May, and the second Monday in November; at the court-house in the city of Oswego on the first Monday in October; at the court-house in the city of Rochester on the first Mondays in January, March, and September; and at the court-house in the city of Buffalo on the first Mondays in February and June.
§3. The governor, by a writing to be filed in the office of the secretary of state, shall, immediately after the passage of this act, designate from the whole bench of justices of the supreme court a presiding justice and two associate justices for each of said departments, to compose the general term therein. After such first designation of presiding and associate justices, the judicial force herein provided for the holding of such general terms, shall be maintained and supplied from time to time, as may be necessary, and for that purpose, other presiding and associate justices, shall, from time to time, be designated, and such other and further designations shall be made by the governor in manner aforesaid. In all cases any person designated as presiding justice shall act as such during his official term; and any person designated as associate justice shall act as such for five years from the thirty-first of December next after the time of his designation, or until the earlier close of his official term. The governor shall, in like manner, as aforesaid, designate presiding and associate justices to sit in such general terms as often as vacancies therein shall occur for the unexpired terms.
§ 4. In case no presiding justice shall be present at the time and place appointed for holding a general term, the associate justice present having the shortest time to serve shall act as presiding justice until the presiding justice shall attend, and in case one or both of the associate justices shall not be present at the time and place appointed for holding a general term, the presiding justice present may select any justice or justices of the supreme court to hold with him such general term until such associate justice or justices shall attend.
§ 5. The general terms shall have all the powers and jurisdiction which under existing laws now belong to the general terms of the supreme court; and all laws relating to general terms, as now organized within the judicial districts, and to the hearing of appeals from judgments pronounced and orders made within such districts, if not inconsistent with the constitution or this act, shall
apply, so far as the same are applicable, to judgments pronounced and orders made within the judicial departments, and to the general terms instituted by this act.
§ 6. Causes and matters pending in any general term instituted by this act may be entitled in the supreme court. The concurrence of two justices shall be necessary to pronounce a decision. If two shall not concur, a re-argument may be ordered. In case of such disagreement, when any one of the three justices shall not be qualified to sit, the cause may be directed to be heard in another department. The associate justices, designated to any department, shall be competent to sit in the general term of any other department, in place of any justice in such other depart
7. To prevent the failure of circuit courts, special terms, and courts of oyer and terminer, as the same have been heretofore appointed for the years eighteen hundred and seventy and eighteen hundred and seventy-one, in consequence of the designation to be made of justices for service in the general terms, as provided by this act, it shall be the duty of the governor, on the request of a justice in any judicial district, to assign justices to hold such circuit courts, special terms and courts of oyer and terminer within such district; provided, however, that the justices in any district may themselves make provisions for the holding of such courts. At least one month before the expiration of the year eighteen hundred and seventy-one, the justices of the supreme court resident in each judicial department mentioned in this act shall appoint the times and places of holding special terms, circuit courts and courts of oyer and terminer within their department, for two years, commencing on the first day of January, eighteen hundred and seventy-two, and the like appointment shall be made for every two succeeding years thereafter.
8. Pursuant to the twelfth section of the said sixth article of the constitution, it shall be the duty of the governor, wherever the public interest shall require, to designate one or more judges of the superior court, or court of common pleas of the city and county of New York, to hold circuits and special terms of the supreme court in that city; such designation shall be in writing, and shall specify the time and place of holding any such circuit or special term. When a case or bill of exceptions shall be made in any cause tried at such circuit or special term, the same shall be settled before the judge holding the same, and the review shall be had at a special or general term of the supreme court in the same manner, and with the same effect, as if such circuit or special term had been held by a justice of the supreme court.
9. The justices of the supreme court shall receive an annual compensation of six thousand dollars each, payable quarterly, in lieu of all other compensation, except that they shall receive, in addition to such stated salaries, a per diem allowance of five
dollars per day for their reasonable expenses when absent from their homes and engaged in holding any general or special term, circuit court or court of oyer and terminer, or in attending any convention, as hereinafter provided, to revise the rules of said court, and no greater sum shall be paid to the chief judge or any associate judge of the court of appeals, or to any commissioner of appeals, than five dollars per day for their reasonable expenses, when absent from their homes and actually engaged in holding any court of appeals, or commission of appeals, and all provisions of law inconsistent with the provisions of this act are hereby repealed. But this section shall not be construed to diminish the compensation now received by the justices of the supreme court of the first and second judicial districts.
§ 10. All appeals and other matters proper to be brought before any general term shall be heard and determined in the department in which the judgment or order appealed from shall be entered, or in which the matter brought up arose, unless two of the general term justices in such department shall be incapable of sitting on the appeal or acting in the matter, in which case the appeal or other matter shall be ordered to be heard in some other department; and in that case such appeal or other matter shall be heard and determined in the department to which the same shall have been ordered as aforesaid."
§ 11. Each general term shall be attended by the sheriff of the county in which any session shall be held, or one of his deputies, and by two constables or police officers, to be summoned by the sheriff; and by a crier for courts within the county, and by the county clerk or his deputy, all of whom shall act under the direction of the court or of the presiding justice; and the sheriff of the county shall see that the room in which the general term shall be held is properly heated, ventilated, lighted, and kept comfortable, clean and in order; and he shall provide the court with necessary stationery during its sittings.
12. The fees of criers, sheriffs, constables and police officers. for attending general terms, and all expenses incurred by sheriffs under and pursuant to the preceding section of this act, shall be audited by the comptroller, and be paid out of the treasury of the State. All fees and proper charges of clerks for services rendered at, or preparatory to, any general term, not legally chargeable to attorneys or parties in cases or matters brought before the general term, shall be a county charge.
§ 13. All rules of the supreme court now in force, not inconsistent with the constitution or any statute of the State, shall remain in force until abolished or altered by the general term justices, the chief judges of the superior courts of cities, the chief judge of the court of common pleas of the city of New York and of the city court of Brooklyn in convention assembled at the capitol in the city of Albany. A convention of such justices and chief
judges shall be held at the place aforesaid, on the first Wednesday in August, eighteen hundred and seventy, and every two years thereafter; and such convention shall revise, alter, abolish and make rules, which shall be binding upon all courts of record, so far as they may be applicable to the practice thereof. A majority of said justices shall constitute a quorum, to do business in the premises, whether said chief judges shall be present or absent; but each justice and chief judge shall be entitled to vote on all matters which shall come before the convention.
§ 14. The governor may, whenever in his judgment the public good shall require it, appoint extraordinary general terms. circuit courts, and special terms of the supreme court and courts of oyer and terminer, and he shall designate the time and place the same shall be held, and name the justice who shall hold the extraordinary circuit or special term, or preside in such court of oyer and terminer, and he shall give notice of such appointment in such manner as he may believe the public good requires.
§ 15. In any action which was referred to a justice of the supreme court, and was pending and undetermined on the first day of January, eighteen hundred and seventy, and in which testimony had been taken, the supreme court, at a special term thereof, may in its discretion order the evidence so taken, and the proceedings had in such action, to stand, and have the same force and effect in the further prosecution of said action or the defense thereof before the court, as if such evidence had been taken or proceedings had before the court.
16. At the election directed to be held on the third Tuesday of May, eighteen hundred and seventy, under the provisions of chapter eighty-six of the laws of eighteen hundred and seventy, there shall be chosen by the electors of the city and county of New York, a judge of the court of common pleas of said city and county, in the place of John R. Brady, who has resigned his office, and the said judge so to be elected pursuant to this act, shall enter upon his official duties on the first day of January next, at which time the term of office of the present incumbent holding by appointment from the governor, will by law expire.
§ 17. This act shall take effect immediately.