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of an ac. tion.
Division of SECTION 1. Remedies in the courts of justice are divided remedies.
2. Special proceedings. Definition
§ 2. An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the
enforcement or protection of a right, the redress or preAmended
vention of a wrong, or the punishment of a public offence. Definition
$ 3. Every other remedy is a special proceeding. of a special proceeding
$ 4. Actions are of two kinds : Division of actions in
1. Civil; to civil and criminal. 2. Criminal. Definition § 5. A criminal action is prosecuted by the people of of a criminal action, the state, as a party, against a person charged with a pub1849. lic offence, for the punishment thereof. Definition § 6. Every other is a civil action. of a civil
§ 7. Where the violation of a right admits of both a criminal civil and criminal remedy, the right to prosecute the one not merged is not merged in the other.
$ 8. This act is divided into two parts: Subjects embraced The first relates to the courts of justice, and their jurisin this act.
The second relates to civil actions commenced in the
courts of this state, after the first day of July, 1848, except Amended when otherwise provided therein, and is distributed into
fifteen titles. The first four relate to actions in all the courts of the state, and the others, to actions in the supreme court, in the county courts, in the superior court of the city of New-York, in the court of common pleas for the city and county of New-York, in the mayors' courts of cities, and in the recorders courts of cities, and to appeals to the court of appeals, to the supreme court, to the county courts, and to the superior court of the city of New-York.
action. Civil and
OF THE COURTS OF JUSTICE, AND THEIR JURIS
II. OF THE COURT OF APPEALS.
OYER AND TERMINER.
IN THE CITY OF NEW YORK, AND THE MAYORS' AND
RECORDERS' COURTS IN OTHER CITIES.
al courts of thus State.
10. Their jurisdiction generally. $ 9. The following are the courts of justice of this state: The sever1. The court for the 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.
Their juris- $ 10. These courts shall continue to exercise the jurisgenerally. diction now vested in them respectively, except as other
wise prescribed by this act.
The rule is a familiar one that as to co of general jurisdiction, their jurisdiction is to be presumed, while that of courts of inferior and limited jurisdiction must be shown by the party claiming under them, as their authority will not be presumed from their judgments. Harrington vs. The People, 6 Barb. 607; Noves vs. Butler, id. 613; Doty. agt. Brown, 4 How. 429.
Of the Court of Appeals.
12. May reverse, affirm or modify judgment or order appealed
from. 13. Terms of the court. Preference of causes. 14. Number of judges who may give judgment. 15. Sheriffs to provide rooms, &c., for court. 16. Court may be adjourned to places other than those desig
nated by law. Its jurisdic
§ 11. 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 supe1349, 1851. rior court of the city of New York, or 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, af ter judgment :
4. In an order granting a new trial, but such appeal shall not be allowed in an action originally commenced in a court of a justice of the peace, or in the marine court of the city of NewYork, or in un assistant justices' court of that city, or in a justices' court of any of the cities of this state.
An appeal will lie from a decree made in the supreme court in an action pending in the court of chancery, when the new Constitution took effect, and which, by force of the Constitution became vested in the supreme court. The Farmers' Loan and Trust Company vs. Carroll, 2 Com. 566.
An appeal may be taken on the same day the judgment roll is filed, before the hour of adjustment of costs. Blydenburgh vs. Cotheal, 5 How. 200.
So an appeal will lie from an order of the supreme court reversing a final decree of the surrogate, in a proceeding for an account, and directing the proceedings to be remitted to the surrogate with instructions. Wagener ex'r &c. agt. Reily and others, 4 How. 195; S. C., 1, C. R. 130; Messerve vs. Sutton et al., executors, 3 Com. 546.
Appeals taken prior to the 1st of July, 1848, under the judiciary act of December, 1847, from a decision of the supreme court upon bill of exceptions, will lie to this court. Butler et al. vs. Miller ; 1 Coms. 428, S. C. 3 How. 339.
Appeals will not lie to this court from decisions in the supreme court made by one justice at a special term. Gracie vs. Freeland, 1 Coms. 228; S. C. 3 Howa 218. The Mayor &c. of New-York vs. Schermerhorn et al. 3 How. 334; The People, ex. rel. Griffin vs. Steele and others, trustees &c., 2 Barb. 554.
But appeals from judgments rendered in the supreme court before the code took effect, must be brought according to the old law. Rice vs. Floyd, 1 Coms. 608; S. C., 3 How. 366.
An appeal will not lie from the decision of the supreme court on a case; there must be a special verdict or bill of exceptions. Wright vs. Douglass, 3 How. 418; Sturgis vs. Merry, 3 How. 418; Livingston vs. Radcliff, 2 Com. 189; S. C., 3 How. 416; King vs. Dennis, 3 How. 419.
The section as last amended, allows appeals to be taken to the court of appeals, in a greater number of cases than forn rly. The principal cases denying appeals, are the following: Candee vs. Lord, 2 Coms. 269; Lan. sing et al. vs. Russell et al., id. 563; Cruger vs. Douglass et al., id. 571; Selden vs. Vermilyea, 1 Coms. 534; S. C., 3 How. 338; Tilley vs. Philips, 1 Coms. 610; S. C., 3 How. 364; Grover vs. Coon, 1 Coms. 536; S. C., 3 How. 341; Selden vs. Vermilyea, 1 Com. 534; S. C., 3 How. 338; Van De. water vs. Kelsey, 1 Com. 533; S. C., 3 How. 338; Marvin vs. Seymour, 1 Com. 535; S.C., 3 How. 341; Harris agt. Clark et al., executors, 4 How. 78; Lansing and others agt. Russell and others, id. 213; Cruger vs. Doug. lass and others, id. 215; Duane vs. The Northern Railroad Company, id. 364; Anonymous, id. 80; Carpenter agt. Carpenter, id. 139; S. C., 2 Code Rep. 83; Dunham and another agt. Nicholson, 4 How. 140; Swarthout and others agt. Curtis and others, 5 How. 198; Enós and others agt. Thomas & Hunter, id. 359; McMahon and wife agt. Harrison, id. 360; Blair vs. Dil
luye, 3 How. 422; Lake agt. Gibson, id. 420; S. C., 2 Com. 188; Sherman et al. vs. Felt et al., 2 Com. 186; S. C., 3 How.425; Sherman et al. vs. Dag. gett and Green, id. 426; Hazelton and wife vs. Wakeman et al., id. 357; Spalding vs. Kingsland, id. 337; Wakeman vs. Price, 3 Com. 334.
See sections 323 to 343 inclusive, and notes. May re- § 12. The court of appeals may reverse, affirm, or momodify
dify the judgment or order appealed from, in whole or in judgment or order ap- part, and as to any or all of the parties; and its judgment pealed
shall be remitted to the court below, to be enforced acAmended cording to law.
After a remittitur has been regularly sent to the court below, this court loses jurisdiction of the cause. Dresser vs. Brooks, 2 Com. 559; S. C.,
4 How. 207; Martin vs. Wilson, 1 Com. 240; Frazer et al. vs. Western,
3 How. 235.
But the court does not lose jurisdiction until the remittitur is actually filed with the clerk of the court below. Burkle vs. Luce, 1 Com. 239; S. C., 3 How. 236.
Where the judgment of the court below is reversed by the default of either party, the remittitur should not be sent to the court below unless this court shall otherwise direct, until ten days after notice of the affirmance or reversal shall have been served on the attorney of the party in default. Lyme vs. Ward, 1 Com. 531. Rule 17 of Court of Appeals.
Where the appeal is dismissed the code does not authorize a remittitur,
§ 13. There shall be four terms of the court of appeals, in each year, to be held at the capitol in the city af Albany, on
the first Tuesday of January, the fourth Tuesday of March, 1849, 1851.
the third Tuesday of June, and the third Tuesday of September, and continued for as long a period as the public interests may require.
Additional terms shall be appointed and held at the same Preference of causes. 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.
A motion upon notice will not be granted by default, where it interferes with the power of the court in controlling their calendar. Crain, adm'x, agt. Rowley, 4 How. 79; Wilkin and another agt. Pearce, id. 26.
Where a default was opened the court imposed as conditions, payment of the taxable costs of the term and of opposing the motion, and a counsel fee
Terms of the court.