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13. The mayors' courts of the cities of Albany, Hud
son, Troy and Rochester. 14. The recorders' courts of the cities of Buffalo and
Utica. 15. The marine court of the city of New-York. 16. The assistant justices courts in the city of New
York. 17. The municipal court of the city of Brooklyn. 18. The justices' courts of the cities of Albany, Troy
and Hudson. 19. The police courts.
The above enumeration of the courts of this state, which has been deemed useful, (as presenting, at one view, the entire judicial establishment,) embraces the general courts of the state, according to their jurisdiction, within the first ten subdivisions, and the local courts in cities, within the remaining nine subdivisions.
This section, it will be observed, merely declares the courts now existing; and is, so far as the local courts are concerned, in conformity with the provision of the constitution, that they "shall remain, until otherwise directed by the legislature, with their present powers and jurisdictions." (Const., art. 14, sec. 12.) In our future report upon this subject, we shall probably recommend an uniformity in the style of those courts, as well as in their jurisdiction. For the present, we have not considered it necessary to do so, except in reference to their jurisdiction, as hereafter defined ; in which, as far as practicable, we have endeavored to assimilate them to each other.
§ 10. These courts shall continue to exercise the jurisdiction now vested in them respectively, except as otherwise prescribed by this act.
SECTION 11. Its jurisdiction.
12. May reverse, afirm or modify judgment or order appealed from.
$11. 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, by the superior court of the city of New York, or by the court of common pleas for the city and county 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 such judgment, to review any intermediate order involving the merits, and necessarily affecting the judgment.
2. In a final order, affecting a substantial right, made in a special proceeding, or upon a summary application in an action, after judgment :
But such appeal shall not be allowed in an action ori. ginally commenced in a court of a justice of the peace, or in the marine court of the city of New York, or in an assistant justice's court of that city, or in the municipal court of the city of Brooklyn, or in a justice's court of the cities of Albany, Troy and Hudson, respectively.
The powers of this court, which is exclusively a court of appeal, and that, so far as the state courts are concerned, of the last resort, are not defined by the constitution, which mere
ly provides for its creation, without designating its jurisdiction. (Const., art. 6, sec. 2.) This has been supplied by the judiciary act of May last, which, in this respect, is a transcript of the statute defining the jurisdiction of the court for the correction of errors. By that act, it is invested with full power to correct and redress all errors that have happened, or may bappen, in the late supreme court and court of chancery, and in the present supreme court; and to examine all errors that shall be assigned or found in any record brought from the late or present supreme court, or in any process or proceeding touching the same, and to reverse or affirm any such judgment, or give such other judgment as the law may require; to which express declaration of its jurisdiction is added, the usual conclusion, that, “all laws relating to the court for the correction of errors, the jurisdiction, powers and duties thereof, the proceedings therein, and the officers thereof, and their powers and duties, shall be applicable to the court of appeals organized by this act, the jurisdiction, powers and duties thereof, the proceedings therein and the officers thereof, and 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.” (1 Laws of 1847, p. 321, sec. 8, 10.) And by the amendments to the judiciary act, which were adopted in December last, writs of error may now be issued from the court of appeals, to review the judgments of the superior court and common pleas in the city of New York, in all cases where the judgment shall exceed one thousand dollars, exclusive of costs, and in dower, partition, and ejectment; (2 Laws of 1847, p. 639, sec. 3;) and the same power is conferred upon the court of appeals, in respect to the orders and decrees of the New-York superior court and common pleas, in equity cases, made at general term. (Ibid. 642, sec. 23.) By another section, also, of the same act, it is provided that “ in any action at law, when a decision shall be made by the supreme court of this state, or by the justices of the late supreme court, upon a bill of exceptions, either in granting or refusing to grant a new trial, any party to such action, conceiving himself aggrieved thereby, may appeal from such decision, to the court of appeals, at any time within forty
days after the service upon bis attorney of a copy of the rule or order granting or refusing to grant such new trial.” (Ibid. p. 639, sec. 5.)
Under the old system, there was no question which presented so many embarrassments, and led to so much diversity of opinion in the court itself, as that which related to the jurisdiction conferred upon the court of errors, by the same phraseology as that which professes to define the jurisdiction of the court of appeals. And it is a singular fact, that the extent of the jurisdiction conferred by the terms thus used, has never yet been brought within the range of a convenient and tangible rule. We look in vain for such a test, to the language of the statute itself; and we are not much relieved from the obscurity of its provisions, when we resort to the judicial constructions it has undergone.
In reference to writs of error to the supreme court, for example, it was at one time laid down as the rule, that when a decision took place in that court which was final, and of which a record could be made, and which decided the rights of property or personal liberty, the statute gave the right of review.
This was determined in the memorable case of Yates v. The Pecple, 6 Johns. 337, which came up on a writ of error, from the supreme court, for refusing to allow a habeas corpus; and where, after a very full and elaborate discussion, the right to a writ of error was established by a vote of 16 to 12; the affirmative of the proposition being sustained by Justices Yutes and Spencer, and Senator Clinton, and the negative by Cbar cellor Lansing, Chief Justice Kent, Justices Van Ness, Thompson and Platt, and Senators Paris and Williams.
In another case, which arose soon afterwards, (Clason v. Shotwell, 12 Johns. 31,) where, on an indictment for a forcible entry and detainer, no return could be obtained to a certiorarı, by reason of the death of the justice before whom the proceedings were had, and the supreme court investigated the case on affidavits, and awarded a restitution, it was held, that the court of errors might, op writ of error, review the proceedings on
the evidence presented in the court below. It was deemed immaterial, whether the decision coraplained of were denomipated a judgment, an order, an award, a decree, or a sentence; and that it was enough, to entitle the party to a review, that the proceedings had all the essential characteristics of a suit, and that the court had closed the litigation by a definitive decision between the parties. And it was affirmed by Senator Sanford, who delivered the prevailing opinion of the court of errors, (which was sustained, 17 to 5,) that “all causes determined in the supreme court, whatever may be the course or mode of proceeding by which they may be conducted or determined, are subject to the appellate jurisdiction of this court."
It was attempted in Brooks v. Hunt, 17 Johns. 484, to apply this principle to a review of a decision of the supreme court, denying a motion to set aside an execution against a party who had been discharged from his debts, and which, in effect, finally determined his liability to pay the judgment; and yet the court of errors, with but two dissenting voices, quashed the writ of error, on the ground that it was not a final determination, but only a decision upon a collateral or interlocutory point.
Following up this distingtion, it was held in a later case, (Matter of Negus, 10 Wend. 24,) that a writ of error did not lie, upon the refusal of the supreme court to set aside the decision of trustees under the statute relative to absconding debtors, upon an allegation of error in deciding upon the adjustment of the demands due the creditors of the absconding debtor. It was contended by senator Tracy, (who delivered a dissenting opinion,) that such decisions by the supreme court was a final determination, within the principle of the previous cases; but this view was overruled by the rest of the court, for various reasons, and among others, that error did not lie, when the court below acted in a summary manner, or in a new course, different from the common law.