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the county courts, and to the superior court of the city of New York.
a. This section limits the provisions of the code to proceedings in suits commenced after the code took effect. Merrit v. Wing, 4 Pr. R., 14; Clark v. Crandall, 4 ib., 127; 2 Code Rep., 70; Truscott v. King, 4 Pr. R., 173; Thompson v. Blanchard, 4 ib., 260; Doty v. Brown, 4 ib., 429. The superior court, however, 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 before the code took effect, in which an appeal is brought after the code took effect, this section extends the provisions of the code to the proceedings and costs on such appeal. Kanouse v. Martin, 2 Sand. 739, 741 ; 3 Code Rep., 203. In Overseers of Clayton v. Beedle, 1 Barb., 11, Allen, J., following the dicta of Jewett and Cowen, JJ., in McDonald v. New York City Savings Bank, 2 Pr. R., 35, and Moore v. Cooley, 2 Hill, 412, held, that a writ of error was not a suit or action.
b. See section 459, post.
P ART I.
OF THE COURTS OF JUSTICE AND THEIR JURISDICTION,
TITLE I. OF THE COURTS IN GENERAL.
II. OF THE COURT OF APPEALS.
or New York, AND THE Marors' AND RECORDERS' Courts in
Of the Courts in general.
10. Their jurisdiction. $ 9. [9.] (Amended 1849.) 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.
These courts shall continue to exercise the jurisdiction now vested in them respectively, except as otherwise prescribed by this act.
The Court of Appeals.*
Section 11. Its jurisdiction.
12. Power of court.
$ 11. [11.] (Amended 1849, 1851, 1852.) 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 the court of common pleas for 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. But such appeal shall not be allowed in an action origin
See Rules in Appendix; and Laws of 1847, pp. 263, 306, 312, 313, 320, 322, 425, 426, 555, 638.
ally cominenced 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 that city, * or in a justice's court of any of the cities of this State.
Nature of the amendments. a. In the Code of 1848, this section was without the now second subdivision, and instead of the words, or in any of the justices' courts of this State," had the words, * or in the municipal court of the city of Brooklyn, or in a justices' court of the cities of Albany, Troy, and Hudson respectively." The amendment of 1849 consisted in striking out the words, " the cities of Albany, Troy, and Hudson, respectively," and substituting therefor the words," any of the cities of this State."
b. The amendment of 1851 was, the addition of the now second subdivision ; the omission, where the asterisk is placed, of the words " or the municipal court of the city of Brooklyn;" and likewise the insertion, as a separate subdivision (subdivision 4), of the words "in an order granting a new trial.” The amendment of 1852 consisted in striking out subdivision 4. While subdivision 4 remained in force, only one decision is reported upon it, and that is Moore v. Westervelt, 1 Code Rep. N.s., 415. As to the municipal court of the city of Brooklyn (“the city court of Brook lyn,'') see Laws of 1849, p. 171, s. 6; Laws of 1850, p. 148, s. 1; and note to section, 33, post.
c. The court of appeals after the abrogation, by laws of 1852, of subdivision 4 of section 11, which permitted an appeal to that court from an order granting a new trial, allowed appeals from orders granting new trials taken prior to the alteration of the law to be dismissed without costs. Gale v. Wells, 7 Pr. R., 191; Porter v. Jones, ib., 192.
d. Subsequently it was enacted,
§ 1. In all cases where regular and valid appeals were taken to the court of appeals, from orders of the supreme court granting new trials in causes pending therein, pursuant to the eleventh section of the code of procedure as amended by the act passed on the tenth day of July, 1851, the court of appeals shall proceed to hear and determine such appeals, any thing contained in the act further amending the code of procedure passed on the sixteenth day of April, 1852, to the contrary notwithstanding. Provided, however, that such appeals were taken before the said last mentioned act took effect as a law.
Additional jurisdiction of Court of Appeals. e. 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.
f. By laws of 1853, cap. 421, p. 820, it is enacted, that “ The court of appeals, or any judge thereof, in term or vacation, shall have power upon satisfactory proof that any final order or decree of the late court of chancery has not been properly enrolled, to make an order for the due enrollment thereof, or for an amendment of the enrollment thereof, to the same extent, and with the like effect, that the said court of chancery might have done.
Wording of Section, how construed. g. 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; 7 Barb., 581; and only determinations hereafter made," which means after the code took effect, per Bronson, J., in Rice v. Floyd, i Code Rep. 112; 3 Pr. R. 366.
h. In Gridley v. Daggett (1 Code Rep. N.S., 386; 6 Pr. R., 280) a decision had been made at special term, and appealed to the general term. At the general term to hearing of the appeal took place, but a judgment was entered under a stipulation
and with a view to an appeal to this court. An appeal was had, and both parties asked to have it heard upon the merits, but it was held that the court had no discretion. The statute is imperative—there must be an “ actual determination” of the court below; and the appeal was dismissed for want of such actual determination as the code requires.
a. The “special proceedings" mentioned in subdivision 3 of this section, are not the “provisional remedies” provided for by Title VII. of Part II. (ss. 178 to 244) of the code. Genin v. Tompkins, 1 Code Rep. N. S. 415.
h. 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 constitution (ART. xiv. s. 5.), and judiciary act (Laws of 1847, p. 322, s. 12), where the decree was made after the code took effect; and that suits transferred might well be considered as suits brought. Farm. Loan f. Trust Co. v. Carroll, 4 Pr. R., 211, 212 ; 2 Code R., 138; 2 Coms., 566.
When the appeal is or is not governed by the code. c. The right to review on appeal to the court of appeals a final order, judgment, or decree, made prior to July, 1847, as also the time and manner of prosecuting the appeal, depend on the old law. Mayor of New York v. Schermerhorn, 1 Code Rep. 109; 1 Coms., 423.
d. When a final order, judgment, or decree, is made after the 1st of July, 1848, whether the suit was commenced before or after that day, the right to appeal, &c., depends upon the code. Selden v. Vermilya, 1 Code Rep., 110; 1 Coms.534 ; Mayor of New York v. Schermerhorn, 1 Code Rep. 109; 1 Coms. 423.
e. This section (s. 11) 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 ; 1 Code Rep., 111; 1 Coms., 610. And see also Grover v. Coon, 3 Pr. R., 341; 1 Code Rep., 96 ; Selden v. Vermilya, 3 Pr. R., 342 ; 1 Code Rep., 101 ; Anon. 1 Code Rep., 101; therefore in Tilley v. Phillips (supra), it was decided that no appeal lay to the court of appeals from an order made upon a bill of exceptions under the judiciary act of 1847, because such order was made after the 1st of July, 1848 (the day the code went into operation), although the suit had been commenced before July, 1848. 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, it was held that the court had authority to decide such appeal after the code took effect. Butler v. Miller, 3 Pr. R., 339; 1 Code Rep., 110.
f. “Whether appeals may still be brought from the decision of the supreme court on bills of exceptions in cases where the action was pending prior to the first day of July, is a question which need not now be decided. We are of opinion that this appeal may be prosecuted in the saine manner as though the code had not been passed.” And see also Spaulding v. Kingsland, 1 Code Rep., 110; 1 Coms., 426. Rice v. Floyd, 1 Code 112; Dunlap v. Edwards, 3 ib., 197 ; 3 Coms., 341.
No appeal lies to the court of appeals in the following cases. g. 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.
h. Upon a mere question of costs. Sherman v. Daggett, 3 Pr. R., 426.
i. 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.
j. To review a judgment upon a report of referees, upon a case containing merely the evidence before the referees, and the same as used before the supreme court. Sturgess v. Merry. 3 Pr. R., 418.
k. 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. Douglass. 3 Pr. R., 418.