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next five sections. But the repeal contained in this section does not affect its jurisdiction of actions or proceedings now pending, or heretofore had therein, nor does it any judgment or order already made, or proceeding already taken.
§ 40. The jurisdiction of this court is of two kinds :
1. Original: and
§ 41. Its original jurisdiction extends to all civil actions and special proceedings, of which exclusive jurisdiction is not conferred upon another court or officer, by the constitution or by this code.
§ 42. Its appellate jurisdiction extends to reviewing, upon appeal, every actual determination, in the following cases :
1. In a final judgment at a general term of a county or city court, in a civil 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 intermediate order affecting a substantial right made in such action, involving the construction of the constitution or of a provision of this code:
3. In a final order, affecting a substantial right, made by a county or city court, in a special proceeding or upon a summary application in an action, after judgment:
4. In a judgment of a court of oyer and terminer, a court of sessions, or a city court, in a criminal action :
5. In a final order made by either of the courts mentioned in the last subdivision, affecting a substantial right, made in a special proceeding of a criminal na
6. In an order or judgment of a surrogate's court, in the cases prescribed by statute:
7. In a final order or decision of a judicial officer, or of an officer or body invested with powers of a judicial nature, in the cases prescribed in this code.
The last four sections are designed to repeal the statutory provisions, now in force, professing to define the jurisdiction of the supreme court, and to substitute in their place an approach, at least, to an intelligible definition on this subject. All that we know respecting the jurisdiction of the supreme court, is contained in a single section of the constitution, and in two sections of the judiciary act. The constitution provides, that “there shall be a supreme court, having general jurisdiction in law and equity.” Const. Art. 6, sec. 3. The judiciary act declares, that “the supreme court organized by this act, shall possess
the same powers
and exercise the same jurisdiction, as is now possessed and exercised by the present supreme court and court of chancery ;" and that “all laws relating to the present supreme court and court of chancery, or any court held by any vice-chancellor, and the jurisdiction, powers and duties of said courts, the proceedings therein and the officers thereof, their powers and duties, shall be applicable to the supreme court organized by this act, the powers and duties thereof, the proceedlings therein, and the officers thereof, their powers and duties, so far as the same can be so applied, and are consistent with the constitution, and the provisions of
this act." Laws of 1847, p. 323, sec. 16. By reference to the Revised Statutes, it will be seen, that, “the supreme court shall possess the powers and exercise the jurisdiction which belonged to the supreme court of the colony of NewYork, with the exceptions, limitations and additions created and imposed by the constitution and laws of this state"; 2 R. S., 3d ed., 259, seć. 1; and that “ the powers and jurisdiction of the court of chancery are co-extensive with the powers and jurisdiction of the court of chancery in England, with the exceptions, additions and limitations created and imposed by the constitution and laws of this state.” 2 R. S., 3d ed., 234, sec. 60.
To ascertain what the precise jurisdiction is, it is necessary to recur to the jurisdiction of the courts of Queens' Bench, Common Pleas and Exchequer, in England, on the common law side, and to that of the court of chancery in that country, on the equity side, and to collate with them the various modifications which the constitution and statutes of this state have introduced. The difficulty of this task can only be appreciated by those who have undertaken it; but the necessity of something like a definition respecting it, must be apparent to every one. That which is given in the sections under consideration, is believed by the Commissioners to be both convenient and accurate.
§ 43. In addition to the jurisdiction conferred by the last two sectiors, this court has the jurisdiction heretofore transferred to it,
1. Of all suits and proceedings now undetermined, and which were pending on the first Monday of July, 1847, in the late supreme court and court of chancery, and in the late courts of common pleas, except in suits originally commenced in justices' courts;
2. To enforce the orders, judgments and decrees of those courts, rendered before that day, or to exercise such other powers in respect thereto, as it might exercise, if they had been made or rendered by this court.
Conformable to the constitution, art. 14, sec. 5.
§ 44. This court has also jurisdiction of all civil actions now undetermined, and which were pending in the late mayor's court of the city of Rochester on the thirtieth day of April, 1849, and of all proceedings incident to judgments rendered in that court, in those actions, on or before that day.
Conformable to Laws of 1819, p. 435, ch. 303, sec. 5.
§ 45. The state is divided into eight judicial districts, of which the city of New York is the first, the others being created by special statutes; in each of which there are four judges of this court, and as niany more in the first district as may be from time to time authorised by law, but not to exceed in the whole, such number in proportion to its population, as shall be in conformity with the number of such judges in the residue of the state, in proportion to its population.
Conformable to the constitution, art. 6, sec. 4, and to Laws of 1847, p. 268, ch. 241.
$ 46. This court is distributed into general and special terms and círcuit courts; the latter of which are in this code denominated circuits.
The distribution prescribed in this section, is in conformity with the existing practice. It is proposed to designate the circuit courts by the name of circuits, as being not only more convenient, but more in consonance with their powers, which are those of a trial term of the supreme court.
§ 47. The general terms are devoted to the hearing and determination,
1. Of cases now pending in this court for review, in actions or special proceedings commenced therein or brought there from another court, or transferred from the late supreme court or court of chancery, as provided in section 43 :
2. Of cases hereafter brought into this court for review, and of appeals from a single judge of this court, as provided in this code:
3. Of controversies submitted without action, as provided in this code:
4. Of questions incidental to the hearing and determination of the cases mentioned in this section:
5. Of such other questions as are prescribed by other provisions of this code.
§ 49. The special terms are devoted,
1. To the hearing and determination of applications, upon failure to answer, and upon complaint and answer:
2. To the hearing and determination of all actions or proceedings now pending in this court, except npon an issue of fact or for review:
3. To the trial of issues of law now pending, or hereafter joined, in actions or proceedings in this court :
4. To the hearing and determination of motions in those actions or proceedings: