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courts of common pleas. But the first subdivision of this section shall not apply to the county courts of the counties of Kings and Erie.

13. To grant new trials, or affirm, modify, or reverse judgments in actions tried in such court upon exceptions, or case made, subject to an appeal to the supreme court.

But in any action or proceeding pending in the county court, in which the county judge is for any cause incapable of acting, it shall be his duty to make a certificate of such fact, and file the same in the office of the clerk of such county court, and thereupon jurisdiction of such action or proceeding shall be vested in the supreme court, and such further proceedings shall be had therein, according to the practice of such court, as might have been had in the county court, if such cause or matter had remained therein; but all such matters shall be heard or tried in the first instance at a special term or circuit court, held in a county where such action or proceeding is situated.

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a. By the constitution (art. vi., sec. 14,) the legislature is empowered to con fer equity jurisdiction in special cases upon the county judge; and in another part of the same section, it is provided that "county courts shall have such jurisdiction, in cases arising in justices' courts, and in special cases, as the legislature may prescribe, but shall have no original civil jurisdiction except in such cases." In Kundolf v. Thalheimer (2 Kernan, 593), it was decided that the county courts have no jurisdiction of an action for an assault, although the damages sought to be recovered do not exceed $500, and, although all the defendants reside in the county where the action is brought, at the time of its commencement; that such an action is not a "special case," within the meaning of that term in the constitution, and therefore the provision purporting to confer jurisdiction therein upon the county court is void. And it was suggested that the county courts have no jurisdiction in any of the ordinary common-law actions. That suggestion has not found favor. Kundolf v. Thal heimer, although not overruled, is authority only for the exact point decided. The county court has jurisdiction of actions to foreclose mortgages (Benson v. Cromwell, 6 Abb. 43; Arnold v. Rees, 17 How. 35; 7 Abb. 328; 18 N. Y. 57, overruling Hall v. Nelson, 23 Barb. 88); and to partition lands within the county (Doubleday v. Heath, 16 N. Y. 80).


6. County courts have also jurisdiction of appeals from the decision of a justice's court, in summary proceedings to recover the possession of land (Laws 1849, p. 292); and their appellate jurisdiction has been held to extend to a judgment in a justice's court in proceedings under the mechanics' lien law. (The People v. Rensselaer County Judge, 13 How. 398). These courts have the same jurisdiction in their respective counties in relation to the liberties of jails, as was vested in courts of common pleas by the revised statutes, part 3, art. iii. tit. 6. cap. 7. (Laws 1851, p. 22.) They have also jurisdiction in proceedings for the naturalization of aliens. (The People v. Pease, 30 Barb. 589.) To entertain an application to change the location of a toll gate. (McAlister v. Albion Plank Rd Co., 11 Barb. 610,) of proceedings to acquire land for the Lockport & Niagara Falls Railroad. (Mosier v. Hilton, 15 Barb. 657.)

c. County courts have no jurisdiction to appoint a receiver of a religious cor

poration, but only the special jurisdiction formerly vested in the chancellor, to direct the application by the corporation itself, of the proceeds of a sale of real estate. *(Wheaton v. Gates, 18 N. Y. 396.)

a. Note to subd. 2.-There is no appeal to the county court from the verdict of a jury given upon, the laying out of a private road." (The People v. Robinson, 17 How. 534; 29 Barb. 77.)

b. Appeal lies to Steuben county court from judgments rendered by the Police Justice of the village of Corning. (Laws 1860, ch. 72.)

c. The county court on appeal may reverse in part, and affirm in part, a judgment of a justices' court, for entire damages, when it clearly appears there are two or more independant causes of action. (Staats v. Hudson River R. R., 23 How. 463.)

d. Note to subd. 8.—This subdivision confers jurisdiction on county courts respecting habitual drunkards in all cases. (Davis v. Spencer, 24 N. Y. 386, overruling; Re Smith, 16 How. 567.)

e. Note to subd. 13.-" Whenever a cause or matter shall be pending in any county court, in which the judge of such court shall have been attorney, or counsel, or shall be interested; or in which he would be excluded from being a juror, by reason of consanguinity or affinity to either of the parties; or in the decision of which he shall have taken part when sitting as a judge in any other court,-it shall be his duty to make a certificate stating such fact, and file the same in the office of the clerk of such county court; and thereupon jurisdiction of such cause or matter shall be vested in the supreme court, in which such proceedings shall be had therein, according to the practice of such court, as might have ben had in such county court if such cause or matter had remained therein." (Laws 1847, c. 470, s. 31.) Perhaps the 13th subdivision, supra, abrogates the law of 1847. Where the appeal from a justice's court to the county court is transferred to the supreme coust by reason of the incapacity of the county judge to hear same, it must be heard in the first instance at a special term of the supreme court. (Sheldon v. Albro, 8 How. 305; Davis v. Stone, 16 id. 508.) The appeal is to be heard on the original papers; and no copy need be furnished for the use of the court (Willis v. Peck, 16 id. 541); the appeal is to be heard in the county court of the county from which it was transferred, and in no other county. (Id.) From the decision at special term an appeal may be made to the general term. (Davis v. Stone, supra.) And where appeal is heard by the supreme court because of the incompetency of the county judge to hear same, the successful party is entitled only to the same costs as he would have been entitled to if the appeal had been decided by the county judge. (Taylor v. Seely, 3 Code R. 84; 4 How. 314; O'Callaghan v. Carroll, 16 How. 327; Davis v. Stone, id. 538.)

f. By subdivision 2, of sec. 33, of this code, "any action or proceeding pending in any mayor's or recorder's court in which the judge is for any cause incapable of acting, may, by such court, be transferred to the county court."

See note to section 60, post.

§ 31. [34.] (Am'd 1849, 1851.) When opon. Terms.

The county court is always open for the transaction of any business for which no notice is required to be given to an opposing party. At least two terms in each county for the trial of issues of law or fact, and as many more as the county judge shall appoint, shall be held in each year at the places in the counties respectively designated by statute for holding county or circuit courts, on such days as the county judge shall from

time to time appoint, and may continue as long as the court deem necessary.

Notice of such appointment shall be published in the State paper at least four weeks before any such term, and also in a newspaper, if any, printed in the county; so many of such terms as the county judge shall designate for that purpose, in such notice, may be held for the trial of issues of law, and hearing and decision of motions, and other proceedings at which no jury shall be required to attend.

§ 32. [36, 37, 38.] (Am'd 1849.) Jurors.

Jurors for the county courts and courts of sessions shall be drawn from the jury-box of the county, and summoned in the same manner as for the trial of issues at a circuit court.

See laws 1861, p. 14, ch. 8.



Of the Superior Court and Court of Common Pleas, in the city of New York,* and the Mayors' and Recorders' Courts in other cities.


34. Common Pleas for New York to review certain judgments. 35. General and special terms.

36. By whom held.

37. Judgments, where given.

38. Concurrence of two judges necessary.

39. Criers.

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33. [39.] (Am'd 1849, 1852.)


The jurisdiction of the superior court of the city of New York, of the court of common pleas for the city and county of

4. The superior court was established by a law passed in 1828. (Laws 1828, p. 141.) By sect. 13 the said court shall have no power to send any process into any other county than the city and county of New York, except in the cases thereinafter specified. [The excepted cases are subpoenas] § 14. Writs of subpoena issuing out of the said court shall be obligatory upon any witness duly served therewith within this State, in like manner as if such writs had been issued out of the supreme court; and obedience to such subpœna may be enforced by attachment.

§23. The chief justice and each of the associate justices of the said court may exercise all the powers and authority incident to their offices at chambers touching any suit, judgment, or proceeding in the said, court; and it shall be the duty of at least one of them to attend daily, at all seasonable hours, in the office to be provided for them by the said mayor, aldermen, and commonalty, for the dispatch of chamber business; and the said just ces, and each of them, shall moreover be and they are hereby authorized to perform all the duties which the justices of the supreme court out of term are authorized to do and perform by any statute of this State.

6. Either of the judges of the said court may hold the same for the trial of causes and for the hearing of non-enumerated motions, &c.; and by sec. 2 of Laws of 1830, p. 18, all the powers relative to the hearing of non-enumerated motions which by said sixth section are vested in a single judge may be exer cised by such judge at chambers.

New York, of the mayors' courts of cities, and of the recorders' courts of cities, shall extend to the following actions:

1. To the actions enumerated in sections 123 and 124, when the cause of action shall have arisen, or the subject of the action shall be situated, within those cities respectively;

2. To all other actions where all the defendants reside, or are personally served with the summons, within those cities respectively, or where one or more of several defendants, jointly liable on contract, reside, or are personally served with the summons, within those cities respectively; except in the case of mayors' and recorders' courts of cities, which courts shall only have jurisdiction where all the defendants reside within the cities in which such courts are respectively situated. The supreme court may remove into that court any action brought under this subdivision and pending in the superior court or court of common pleas for the city and county of New York, and may change the place of trial therein, as if such action had been commenced in the supreme court; such order for removal and for change of place of trial to be made in the supreme court upon motion, and on filing a certified copy of such order in the office of the clerk of the superior court, or

Act of 1830, s. 4. Orders out of court relating to any suit pending in the said common pleas after any default entered, or any issue of fact shall have been joined in the same, shall be granted by the first judge only of said court, (except for the examination of witnesses when the said court shall be actually sitting), unless he shall be absent from the city of New York, or incapacitated to attend thereto by sickness.

9. The same power is hereby given to the first judge of said court at chambers relative to suits and proceedings in such court, as is given by any law of this State to the justices of the supreme court at chambers.

Laws of 1821, § 1. The first judge of said court [of Common Pleas] may perform all the duties, and exercise all the powers which may be done and performed by the recorder, " or by the several commissioners appointed by virtue of the act entitled, an act to appoint commissioners to perform certain duties of judges of the supreme court," or any subsequent act, &c.

Laws of 1840, ch. 276, § 2. When any proceeding shall be commenced by or before any judge of the said court by virtue of any statute of this State, the same may be continued by or before any other judge of said court.

§ 3. When there shall be a motion or proceeding in the said court, in which it shall be necessary for either party to have the deposition of any witness, who may be within the jurisdiction of said court, and who shall have refused to make his deposition voluntarily, the court may issue a summons requiring such witness to attend before a judge thereof to make his said deposition; and obedience to such summons may be enforced, as in case of a subpœna issued by said court.

§ 4. All the provisions of this act shall apply to the court of common pleas of the city of New York, in like manner and to the same extent as they do to the superior court of said city.

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