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spect is readily obviated, by withholding, as is done in a subsequent portion of the code, from inferior courts, to which this power should not be intrusted, the attributes of a clerk and seal, both of which must be added to their functions as courts of record, to enable them to exercise this power..
While this general distinction is abolished, however, the section under consideration provides that justices and police courts are deemed inferior courts not of record, within the section of the constitution providing for the removal of justices of the peace, and judges or justices of inferior courts not of record, and their clerks, by such county, city or statecourts as may be prescribed by law, but for no other purpose.
THE COURT FOR THE TRIAL OF IMPEACHMENTS.
SECTION 21. Its jurisdiction.
22. Members of the court.
$ 21. The court for the trial of impeachments has power to try impeachments, when presented by the assembly, of all civil officers of the state, except justices of the peace, justices of justices' courts, police justices, and their clerks, for wilful and corrupt misconduct in office.
$ 22. The court is composed of the president of the sénate, the senators, or a majority of theni, and the judges of the court of appeals, or a majority of them. But on the trial of an impeachment against the governor, the lieutenant-governor cannot act as a member of the court.
$ 23. The president of the senate, or in case of his impeachment, death or absence, the chief judge of the court of appeals, or in the absence of both, such other member as the court may elect, is the presiding judge of the court.
§ 24. The clerk and officers of the senate, are the clerk and officers of the court for the trial of impeachments
§ 25. There are no stated terms of this court; but upon the delivery of an impeachment from the assembly, the president of the senate must cause the court to be summoned to meet at the capitol in the city of Albany, on a day not less that thirty nor more than sixty days from the day of the delivery of the articles of impeachment
§ 26. At the time and place appointed, and before the court proceeds to act on the impeachment, the clerk must adıninister to the presiding judge, and the presiding judge to each of the members of the court then present, an oath or affirmation truly and impartially to hear, try and determine the impeachment; and no member of the court can act or vote upon the impeachment or any question arising thereon, without having taken such oath or affirmation.
The preceding sections of this chapter, are the same as are contained in the Code of Criminal Procedure, sec. 17-22. They are explained in the notes to that code, p. 12–14.
§ 27. When the court is held during the recesso f the legislature, the president of the senate, the senators, and the clerk and officers of the court are entitled to the same compensation for their attendance thereon, and for travelling to and from the place where it is held, as is allowed them at a meeting of the senate.
Substantially the same as 2 R. S , 3d ed. 224, sec. 13.
THE COUNT OF APPEALS.
SECTION 28, 29. Its jurisdiction.
30. May reverse, affirm or modify, judgment or order appealed from.
five do not concur, case must be reheard.
§ 28. The court of appeals has exclusive jurisdiction to review, upon appeal, every actual determination hereafter made, at a general term, by the supreme court, by the superior court or court of common pleas of the city 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 that 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:
But the appeal given by this section is not allowed in an action originally commenced in a justice's court, or in the marine court of the city of New-York.
This section, with the exception of the second subdivision, is the same as presented by the Commissioners in their first report, and retained by the legislature in the amended code, sec. 11. The second subdivision, which provides for an appeal from an order, in certain cases, appears proper.
§ 29. In addition to the jurisdiction conferred by the last 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.
Taken from the judiciary act, Laws of 1847, p. 322, sec. 12.
§ 30. This court may reverse, affirm, or modify the judgment or order appealed from ; and its judgment must be remitted to the court below, to be enforced according to law.
Same as the code of 1848, sec. 12. This section was altered in the amended code, sec. 12, by authorising the court to reverse, affirm, or modify the order, “ in whole or in part, and
as to any or all of the parties.” This alteration is wholly unnecessary, being included in the power to modify the judge ment or order.
§ 31. This court is composed of eight judges, of whom four are elected by the electors of the state for eight years, and four selected from the class of judges of the supreme court having the shortest time to serve, as prescribed by special statutes.
Conformable to the Constitution, art. 6, sec. 2.
$ 32. The judge elected by the electors of the state, and having the shortest time to serve, is for the time being the chief judge.
The constitution, art. 6, sec., 2, prescribes that provision shall be made by law, for designating one of the number of the judges of the court of appeals elected by the electors of the state, as chief judge. This section does so, in conformity with the judiciary act. Laws of 1847, p. 320, sec, 5.
§ 33. The presence of six judges is necessary for the transaction of business; but any one or more of the judges may adjourn the court from day to day or for the term, with the same effect as if all were present.
The constitution, art. 6, sec. 2, provides, that this court shall be a composed of eight judges,” omitting to declare that a less number is competent for the transaction of busi
The judiciary act, however, provided that “six judges of the court of appeals shall be necessary to constitute a quorum for holding any term of said court.” Laws of 1847, p. 321, sec. 6.