§ 10. Jurisdiction of courts generally.

These courts shall continue to exercise the jurisdiction now vested in them respectively, except as otherwise prescribed by this

act.

a. Priority of Jurisdiction.-If two actions between the same parties, and upon the same subject matter, are brought in two different courts, the court which first acquires jurisdiction should dispose of the whole controversy (McCarthy v. Peake, 9 Abb. 164).

b. Courts have Jurisdiction.-Foreign governments may sue and be sued in the courts of this State in their federative name (Republic of Mexico v. Arrangois, 11 How. 1; 2 Abb. 437; 3 id 470; Manning v. State of Nicaragua, 14 How. 517; Delafield v. State of Illinois, 26 Wend. 192; Burrall v. Jewett, 2 Paige, 134; Gibson v. Woodworth, 8 id. 132; The People of Michigan v. Phonix Bank, 4 Bosw. 382); but the court refused to entertain a suit against residents of this State, which affected property held by the defendants merely as agents of a foreign government (Leavitt v. Dabney, 3 Abb. N. S. 469; 37 How. 264; 7 Rob. 350).

Of actions by citizens of this State against foreign railroad corporations (Fisk v. Chicago & Rock Island R. R. 53 Barb. 513).

Of actions on contracts made out of the State (Winter v. Baker, 50 Barb. 432; Skinner v. Tinker, 34 Barb. 333).

Although a State of the United States has adopted an ordinance of secession, it may nevertheless sue in the courts of this State (U. S. v. Victor, 16 Abb. 153).

Of an action against officers of the United States Government in certain cases,-see Ripley v. Gelston, 9 Johns. 201; Re Stacey, 10 id. 328; Hoyt v. Gelston, 13 id 141; Wilson v. McKenzie, Hill, 95; Teall v. Felton, 1 Barb. 537; McButt v. Murray, 10 Abb. 196.

95).

Of actions on bonds given for duties to the U. S. (U. S. v. Dodge, 14 Johns.

On actions by collectors of U. S. customs upon receiptor's agreement for safe-keeping of forfeited goods (Sailly v. Cleveland, 10 Wend. 156).

Of actions for torts at sea (Percival v. Hickey, 18 Johns. 257; and see Novion v. Hullett, 16 id. 327; Wilson v. McKenzie, 7 Hill, 95; Gardner v. Thomas, 14 Johns. 134); or in a foreign State or country, where defendant is served with process within this State (McIvor v. McCabe, 16 Abb. 320: 26 How. 257; Smith v. Bull, 17 Wend. 323; Lister v. Wright, 2 Hill, 320; Beach v. Bay State Co. 27 Barb. 248; 6 Abb. 415; 16 How. 1; and see Armstrong v. Foote, 11 Abb. 384; 19 How. 237; Martin v. Hill, 12 Barb. 631; De Witt v. Buchanan, 54 Barb. 31, and Molony v. Dows, 8 Abb. 316; Hull v. Vreeland, 18 Abb. 182; Latourette v. Clarke, 45 Barb. 327; S. C. is erroneously reported 30 How. 242; Armstrong v. Foote, 11 Abb. 384).

Of actions against national banks, located out of the State (Cooke v. State National Bank of Boston, 50 Barb. 339).

Of actions respecting real estate out of this State (Watts v. Kinney, 6 Hill, 82; 23 Wend. 484; Mussina v Belden, 6 Abb. 165; Ward v. Arredondo, Hopk. 213; Shattuck v. Cassidy, 3 Edw. 152; Slatter v. Carroll, 2 Sandf. Ch. 573; De Klyn v. Watkins, 3 id. 185; D'Ivernois v. Leavitt, 23 Barb. 63; Bailey v. Rider, 10 N. Y. 363; Gardner v. Ogden, 22 N. Y. 327; Newton v. Bronson, 13 N. Y. 587; Fenner v. Sanborn, 37 Barb. 610; Williams v. Ayrault, 31 Barb. 364; 37 N. Y. 444; but see Hurd v. Miller, 2 Hilton, 540; Mott v. Coddington, 1 Abb. N. S. 290).

Of an action upon a policy of insurance issued within this State by a resident agent of a foreign insurance company (Burns v. Provincial Ins. Co. 35

Barb. 325; and see Watson v. Cabot B'k, 5 Sand. 423; affirmed in the court of appeals, so said, 4 Duer, 606, and see post, sec. 427).

a. The courts have not jurisdiction to entertain an action brought against the State itself, except as authorized by statute (Kiersted v. The People, 1 Abb. 385; Garr v. Bright, 1 Barb. Ch. 157).

Of an action in which a foreign consul is defendant, either alone or with others (Sippile v. Albites, 5 Abb. N. S. 77; Rock River Bank v. Hoffman, 14 Abb. 72); and it is no answer to an application to vacate the proceedings in such an action, that since the action was commenced the exequator of the said consul has been revoked (id.); nor, in the case of a consul sued jointly with others, can the State court retain jurisdiction of the action by striking out the name of the consul, and proceeding against the other defendants (id; and see Taaks v. Schmidt, 19 How. 413). The exemption of a consul is not personal, and he cannot waive it (Valarino v. Thompson, 7 N. Y. 576; and see 1 Barb. 449; 1 Sand. 690).

To restrain the prosecution of an action in another State (Williams v. Ayrault, 31 Barb. 364; Mitchell v. Bunch, 2 Paige, 606; Meade v. Merritt, id. 402; Baily v. Rider, 10 N. Y. 363; see, however, Field v. Holbrook, 3 Abb. 377; McKee v. Voorhies, 7 Cranch, 279; Phelan v. Smith, 8 Cal. 520; Diggs v. Wolcott, 4 Cranch, 179; Hill v. Hill, 28 Barb. 23; and see in note to § 219, post).

To declare void a proceeding in a court of another State (Hill v. Hill, 28 Barb. 23), unless there is an attempt to enforce such proceeding in a court of this State (id.; Dobson v. Pearce, 12 N. Y. 156).

Of an action on contract against an Indian (Hastings v. Farmer, 4 N. Y. 293).

The courts of this State will not enforce the penal laws of the United States (U. S. v. Lathrop, 17 Johns. 9), nor of any other State (Scoville v. Canfield, id. 338), nor a foreign bankrupt or revenue law (Mosselman v. Caen, 34 Barb. 66; Skinner v. Tinker, 34 Barb. 333).

Nor adjudicate on the right to salvage (Baker v. Hoag, 7 N. Y. 563; Frith v. Crowell, 5 Barb. 209; see, however, Cashmere v. Crowell, 1 Sand. 715; Cashmere v. De Wolf, 2 id. 379).

For damages for infringement of a patent (Burrall v. Jewett, 2 Paige, 134), or copyright (Dudley v. Mayhew, 3 N. Y. 9), or where the existence and validity of a patent for invention must necessarily be shown to enable the plaintiff to recover (Tomlinson v. Battell, 4 Abb. 266); nor of actions against foreign executors or administrators (Metcalf v. Clark, 41 Barb. 45), unless residents of this State (Gulick v. Gulick, 33 Barb. 92; 21 How. 22; Montalvan v. Clover, 32 Barb. 190; and see Sere v. Coit, 5 Abb. 482, and post, in note to § 142, subd. 1, Executor or Administrator.

Nor to discharge on habeas corpus persons detained under the authority of the United States (Re Hopson, 40 Barb. 84; Re Barrett, 42 Barb. 479; Reilly's Case, 2 Abb. N. S. 334; O'Connor's Case, 3 Abb. N. S. 137; 48 Barb. 258).

Nor over lands ceded by the State to the United States (Dibble v. Clapp, 31 How. 420).

As to the territorial jurisdiction of the State,-see 1 R. S. 61; Manley v. The People, 7 N. Y. 297; The People v. Hulse, 3 Hill, 309.

As to the jurisdictions of the several courts, see post, titles II. III. IV. V. VI. VII.

b. Actions and proceedings against the Mayor, &c., of New York. The supreme court in the first district has exclusive jurisdiction of all actions against the mayor, aldermen, and commonalty of said city (Laws 1867, p. 1606, sec. 6; Laws 1860, ch. 379. See The People v. The New York & Harlem R. R. Co. 26 How. 54).

No action or special proceeding can be maintained against said mayor, &c., unless it "appear by, and as an allegation in," the complaint or moving papers, that at least twenty days have elapsed since the claim, on which such action or proceeding is founded, was presented to the comptroller of said city for ad

"said

justment, and that, upon a second demand in writing being made on comptroller, after the expiration of said twenty days," said comptroller "neglected or refused to make an adjustment or payment" of said claim. Judgment for plaintiff in any such action or proceeding, carries costs without regard to the amount of the recovery (Laws 1860, p. 645, s. 2).

In the adjustment of claims by the comptroller, he may administer oaths to claimants and witnesses, and examine them on all matters pertinent to the claim (id. s. 3).

All process and papers for the commencement of actions and proceedings against the corporation of said city, must be served on the mayor, comptroller, or counsel to the corporation (id. s. 4).

No execution can be levied on the property of said city until after ten days' notice in writing of the issuing said execution has been given to the comptroller of said city (id. s. 5).

This is a public statute and need not be pleaded (Bretz v. Mayor of N. Y. 4 Abb. N. S. 258; 35 How. 130).

Laws 1868, pp. 20-22, s. 8, re-enact the said law of 1860, and authorize the comptroller to borrow money to pay judgment; and Laws 1868, p. 2032, s. 2, enact that no judgment against the county of New York shall be valid unless the claim on which it was recovered had been previously presented to the supervisors. And no execution is to issue on judgment against said Mayor, &c., until after ten days' notice to the comptroller.

a. Municipal corporations.—As to costs and as to appeals in actions against municipal corporations,-see Laws 1859, ch. 262, s. 2; Laws 1858, ch. 334, in notes to sections 303, 323, and 354, post.

13. Terms. Preference of causes.

14. Judgment, how given.

15. Sheriff to provide rooms, &c.

16. Court, where held, adjournment.

§ 11. (Am'd 1849, 1851, 1852, 1857, 1862, 1865, 1866, 1867, 1869, 1870.) 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, or the superior court of the city of Buffalo,† in the following cases, and no other:

* See Rules in Appendix; Laws of 1870, ch. 86, providing for the election of a chief judge, and six associate judges; and Laws of 1870, ch. 203, relating to the court of appeals, and the commission of appeals.

+ Laws 1857, vol. i. p. 753, § 3.

Barb. 325; and see Watson v. Cabot B'k, 5 Sand. 423; affirmed in the court of appeals, so said, 4 Duer, 606, and see post, sec. 427).

a. The courts have not jurisdiction to entertain an action brought against the State itself, except as authorized by statute (Kiersted v. The People, 1 Abb. 385; Garr v. Bright, 1 Barb. Ch. 157).

Of an action in which a foreign consul is defendant, either alone or with others (Sippile v. Albites, 5 Abb. N. S. 77; Rock River Bank v. Hoffman, 14 Abb. 72); and it is no answer to an application to vacate the proceedings in such an action, that since the action was commenced the exequator of the said consul has been revoked (id.); nor, in the case of a consul sued jointly with others, can the State court retain jurisdiction of the action by striking out the name of the consul, and proceeding against the other defendants (id; and see Taaks v. Schmidt, 19 How. 413). The exemption of a consul is not personal, and he cannot waive it (Valarino v. Thompson, 7 N. Y. 576; and see 1 Barb. 449; 1 Sand. 690).

To restrain the prosecution of an action in another State (Williams v. Ayrault, 31 Barb. 364; Mitchell v. Bunch, 2 Paige, 606; Meade v. Merritt, id. 402; Baily v. Rider, 10 N. Y. 363; see, however, Field v. Holbrook, 3 Abb. 377; McKee v. Voorhies, 7 Cranch, 279; Phelan v. Smith, 8 Cal. 520; Diggs v. Wolcott, 4 Cranch, 179; Hill v. Hill, 28 Barb. 23; and see in note to § 219, post).

To declare void a proceeding in a court of another State (Hill v. Hill, 28 Barb. 23), unless there is an attempt to enforce such proceeding in a court of this State (id.; Dobson v. Pearce, 12 N. Y. 156).

Of an action on contract against an Indian (Hastings v. Farmer, 4 N. Y. 293).

The courts of this State will not enforce the penal laws of the United States (U. S. v. Lathrop, 17 Johns. 9), nor of any other State (Scoville v. Canfield, id. 338), nor a foreign bankrupt or revenue law (Mosselman v. Caen, 34 Barb. 66; Skinner v. Tinker, 34 Barb. 333).

Nor adjudicate on the right to salvage (Baker v. Hoag, 7 N. Y. 563; Frith v. Crowell, 5 Barb. 209; see, however, Cashmere v. Crowell, 1 Sand. 715; Cashmere v. De Wolf, 2 id. 379).

For damages for infringement of a patent (Burrall v. Jewett, 2 Paige, 134), or copyright (Dudley v. Mayhew, 3 N. Y. 9), or where the existence and validity of a patent for invention must necessarily be shown to enable the plaintiff to recover (Tomlinson v. Battell, 4 Abb. 266); nor of actions against foreign executors or administrators (Metcalf v. Clark, 41 Barb. 45), unless residents of this State (Gulick v. Gulick, 33 Barb. 92; 21 How. 22; Montalvan v. Clover, 32 Barb. 190; and see Sere v. Coit, 5 Abb. 482, and post, in note to § 142, subd. 1, Executor or Administrator.

Nor to discharge on habeas corpus persons detained under the authority of the United States (Re Hopson, 40 Barb. 84; Re Barrett, 42 Barb. 479; Reilly's Case, 2 Abb. N. S. 334; O'Connor's Case, 3 Abb. N. S. 137; 48 Barb. 258).

Nor over lands ceded by the State to the United States (Dibble v. Clapp, 31 How. 420).

As to the territorial jurisdiction of the State,-see 1 R. S. 61; Manley v. The People, 7 N. Y. 297; The People v. Hulse, 3 Hill, 309.

As to the jurisdictions of the several courts, see post, titles II. III. IV. V. VI. VII.

b. Actions and proceedings against the Mayor, &c., of New York. The supreme court in the first district has exclusive jurisdiction of all actions against the mayor, aldermen, and commonalty of said city (Laws 1867, p. 1606, sec. 6; Laws 1860, ch. 379. See The People v. The New York & Harlem R. R. Co. 26 How. 54).

No action or special proceeding can be maintained against said mayor, &c., unless it " appear by, and as an allegation in," the complaint or moving papers, that at least twenty days have elapsed since the claim, on which such action or proceeding is founded, was presented to the comptroller of said city for ad

"said

justment, and that, upon a second demand in writing being made on comptroller, after the expiration of said twenty days." said comptroller "neglected or refused to make an adjustment or payment" of said claim.

Judgment for plaintiff in any such action or proceeding, carries costs without regard to the amount of the recovery (Laws 1860, p. 645, s. 2).

In the adjustment of claims by the comptroller, he may administer oaths to claimants and witnesses, and examine them on all matters pertinent to the claim (id. s. 3).

All process and papers for the commencement of actions and proceedings against the corporation of said city, must be served on the mayor, comptroller, or counsel to the corporation (id. s. 4).

No execution can be levied on the property of said city until after ten days' notice in writing of the issuing said execution has been given to the comptroller of said city (id. s. 5).

This is a public statute and need not be pleaded (Bretz v. Mayor of N. Y. 4 Abb. N. S. 258; 35 How. 130).

Laws 1868. pp. 20-22, s. 8, re-enact the said law of 1860, and authorize the comptroller to borrow money to pay judgment; and Laws 1868, p. 2032, s. 2, enact that no judgment against the county of New York shall be valid unless the claim on which it was recovered had been previously presented to the supervisors. And no execution is to issue on judgment against said Mayor, &c., until after ten days' notice to the comptroller.

a. Municipal corporations.—As to costs and as to appeals in actions against municipal corporations,—see Laws 1859, ch. 262, s. 2; Laws 1858, ch. 334, in notes to sections 303, 323, and 354, post.

$11. • (Am'd 1849, 1851, 1852, 1857, 1862, 1865, 1866, 1867, 1869, 1870.) 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, or the superior court of the city of Buffalo,† in the following cases, and no other :

*See Rules in Appendix; Laws of 1870, ch. 86, providing for the election of a chief judge, and six associate judges; and Laws of 1870, ch. 203, relating to the court of appeals, and the commission of appeals.

+ Laws 1857, vol. i. p. 753, § 3.