TITLE V.

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

SECTION 33.

Jurisdiction.

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.

40. Superior Court, of whom to consist.

41.

42.

43. Obsolete.

44.

45.

46. Terms of Superior Court.

47. Suits may be transferred.

48. Jurisdiction of transferred suits.

49. (Repealed.)

50. Appeal.

51. Section applied.

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

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

a. *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 subpoena 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 subpoena 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.

of the court of common pleas, such cause shall be deemed to be removed into the supreme court, which shall proceed therein as if the same had originally been commenced there; and the clerk with whom such order is filed, must forthwith deliver to the clerk of the county in which, by such order, the trial is ordered to be had, to be filed in his office, all process, pleadings, and proceedings relating to such cause. And 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 of the county; and thereupon the papers therein on file in the mayor's or recorder's court shall be transmitted to the county court; which shall thenceforth have jurisdiction of such action. or proceeding.

3. To actions against corporations created under the laws of this State, and transacting their general business, or keeping an office for the transaction of business, within those cities. respectively, or established by law therein, or created by or under the laws of any other State, government, or country, for the recovery of any debt, or damages, whether liquidated. or not, arising upon contract made, executed, or delivered within the State, or upon any cause of action arising therein.

a. Note to subd. 1.—JURISDICTION OF SUPERIOR COURT AND COMMON PLEAS. The common law jurisdiction of the New York Superior Court and Common Pleas, except in its territorial limitation, is co-equal with that of the Supreme Court; any action triable in the latter is triable in the former, provided the defendant, or one of the defendants, resides, or is served with process, within the city of New York, or where the cause of action arose, or the subject of the action is within that city. (McIvor v. McCabe, 16 Abb. 319; Porter v. Lord, 13 How. 254; 2 Abb. 43; 4 Duer, 682; Bates v. Reynolds, 7 Bosw. 685; McKenzie v. Hackstaff, 2 E. D. Smith, 75.) They have no jurisdiction to compel a conveyance of land out of the city of New York. (Ring v. McCoun, 10 N. Y. 268.) Their jurisdiction includes partition of lands in the city of New York, or the determination of any estate or right in such lands without reference to the residence of the parties. (Id.; Varian v. Stevens, 2 Duer, 635; Nichols v. Romaine, 9 How. 512.) These courts have general equity jurisdiction, and may entertain an action to compel the specific performance of a contract by a religious corporation for the sale of its real estate. (Bowen v. Irish Presbyt. Cong., 6 Bosw. 246.) These courts have jurisdiction of all action against the corporation of the city of New York upon any cause of action whatever. (Harlem R. R. Co. v. Metro. Police Commr's, 1 Hilton, 562; and see ante, p. 23 6); and have jurisdiction of all actions against foreign corporations, where the cause of action upon which the suit is brought arises within the city of New York; and in such case a voluntary appearance by the defendant (even without any service of summons) gives the court jurisdiction of the person (Watson v. The Cabot Bank, 5 Sand. 423, affirmed in the court of appeals; so said, 4 Duer, 606; see Harriott v. New Jersey R. R. Co., 2 Hilton, 262; 8 Abb. 284; and note to section 427 post); and perhaps concurrent jurisdiction with the U. S. courts in admiralty over a question of salvage (Cash

mere v. Crowell, 1 Sand. 715; Cashmere v. De Wolf, 2 id. 379; see, however, Frith v. Crowell, 5 Barb. 209; Baker v. Hoag, 3 Selden, 563). They have not jurisdiction to appoint a receiver to wind up the affairs of a foreign corporation (Day v. U. S. Car Spring Co., 2 Duer, 608), nor to issue a commission of lunacy (Re Brown, 1 Abb. 108; 4 Duer, 613), nor to compel the attendance of witnesses to be examined under a commission from a court of a foreign country (Re Jay, 5 Sand. 674), nor of proceedings for the dissolution of a corporation. (Kattenstroth v. Astor Bank, 2 Duer, 632; Brahe v. The Pythagoras Asso., 4 Duer, 658; 11 How. 44.) Perhaps subd. 3" only relates to actions to recover a debt or damages, or such equitable relief as one natural person may claim of another" (id.), and the equitable powers of these courts can only be exercised in those actions and proceedings which their jurisdiction as defined by the code properly embraces. (The People v. Porter, 1 Duer, 709.) An action commenced in either of these courts by individual corporators of New York city against the Mayor, Aldermen, and Commonalty, asking for an injunction restraining the defendants from granting the right to construct a railroad in said city, is within the jurisdiction of that court, both as to parties and subject-matter, and the court may grant the injunction sought (The People v. Sturtevant, 5 Selden, 263); and the superior court has jurisdiction of an action for divorce by reason of adultery committed within this State, when the parties to the action were inhabitants of this State, and resided in it when the of fense was committed, and continued to reside in it up to the time of suit brought, the defendant then residing in the city of New York. (Forrest v. Forrest, 6 Duer, 102; 25 N. Y. 501.)

See sections 139 and 427, post.

a. The courts will not sanction any attempt by fraud or misrepresentation to bring a party within the jurisdiction (Carpenter v. Spooner, 2 Sand. 717; 2 Code R. 140; 3 id. 23; Goupil v. Simonson, 3 Abb. 474); thus where by a false state ment, made for the purpose, a defendant was induced to come within the city of New York, and was there served with a summons in an action in the superior court, the service was set aside. (Id.)

b. These courts have the same powers to compel discovery by the parties to a suit pending therein, which are conferred by the revised statutes on the supreme court (Gould v. M'Carthy, 1 Kernan, 575; see note to section 388, post); and the justices of the superior court may issue attachments against absconding, concealed, or non-resident debtors. (Renard v. Hargous, 3 Kernan, 259.)

e. In an action in the common pleas, the defendant a (non-resident) was served with the summons out of the jurisdiction of the court, and he without objection or reservation gave notice of appearance, and then moved to set aside the proceedings for want of jurisdiction of his person; the court held that the defendant, by appearing voluntarily and without objection, had conferred jurisdiction. (Smith v. Dipeer, 2 Code R. 70.)

d. The common pleas possess all the power and jurisdiction of county courts throughout the state. (Wood v. Kelly, 2 Hilton, 334,) and on appeals from the marine and justice's courts, all the powers and jurisdiction formerly exercised by the superior court of New York. (Wood v. Kelly, 2 Hilton, 334.) It has power to commit for the non-payment of a personal tax. (Kahn's case, 11 Abb. 147,) and each of the associate judges of this court, possesses the power by the Revised Statutes conferred on the first judge of that court, to compel delivery of books, &c., belonging to a public office. (Devlin v. Platt, 11 Abb. 398.)

e. The common pleas has jurisdiction of judgments on recognizances docketed with the county clerk under laws of 1844 (Laws 1845, p. 250; Laws 1861, ch. 333); and to remit fines and forfeit recognizances in the same cases, and in like manner as such power was heretofore given by law to courts of common pleas; and to correct and discharge the dockets of liens and of judgments entered upon recognizances; and to exercise in the city and county of New York all the powers and jurisdiction now or hereafter conferred upon or vested in the said court, or the county courts in their counties, and the powers and jurisdiction which were vested in the court of common pleas for the city

and county of New York before the enactment of the code. (Laws 1854, p. 464. See The People v. Lott, 21 Barb. 130.)

a. A judgment entered with the county clerk upon a forfeited recognizance, becomes a lien on real estate from the time of docketting (The People v. Lott, 21 Barb. 130), and is subject to the jurisdiction and control of the New York common pleas to the same extent as if it had been docketted in it. (The People v. Petry, 2 Hilton, 523; The People v. Lott, 21 Barb. 130.) In addition, the court has the discretionary power to remit the forfeiture in whole or in part, or to discharge the recognizance upon such terms as appear just and reasonable. (The People v. Petry, 2 Hilton, 523.) In the exercise of this discretion, the court will look into the proceedings at the time the forfeiture was declared, to ascertain whether the party was fairly entitled to a postponement of the trial, but, semble, that will not be done until he has submitted himself to trial and judgment upon the indictment against him. (Id.)

b. Upon application for a remission of a forfeiture upon a recognizance, the application will be denied unless it appear that the bail in no wise connived at the escape of his principal, and that reasonable diligence has been used to apprehend and surrender him. (Id.)

e. For a history of the New York court of common pleas, an account of its judicial organization and jurisdiction, the reader is referred to an elaborate article by the Honorable Charles P. Daly, first judge of the court, in 1. E. D. Smith's Reports.

d. Removal of causes.-The making an order for the removal of an action from the superior into the supreme court, is a matter within the discretion of the court, and the removal will not be ordered unless, upon the facts shown, the court can see good cause for directing it (Campbell v. Butler, 4 Abb. 55); but the removal is ordered in all cases where sufficient cause for removal is shown. (Carpenter v. Spooner, 3 Code R. 23; 2 Sand. 717.) On a motion to remove an action, the papers should be entitled in the court in which the action is then pending, and out of which the removal is sought. (Miller v. Dows, 2 How. 98.)

e. The provision of law (Laws 1844, ch. 32,) declaring that no habeas corpus or certiorari shall be allowed removing a proceeding before judgment or final decision from the court of common pleas, applies not only to proceedings in court, but also to all such proceedings as by statute are authorized to be instituted before any judge of the court (Devlin v. Platt, 11 Abb. 398), and, therefore, a proceeding before a judge of that court to compel delivery of books, &c., of a public office, cannot, before a final determination thereof, be removed into the supreme court by certiorari. (Id.) A certiorari to remove such proceeding while still pending is a nullity, and may be disregarded. (Id.)

$34. [40.] (Am'd 1849.) Common pleas to review certain judgments.

The court of common pleas for the city and county of New York, shall also have power to review the judgments of the marine court of the city of New York, and of the justices' courts in that city.

See section 427 and note, and section 352. Abb. 344.)

35. [41.] Terms.

(Hawkins v. Mayor of N. Y., 5

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