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jurisdiction now existing in appeals pending, or apply to those to be brought, (either by writ of error or appeal,) from judgments already rendered by those courts, or from those hereafter to be rendered by the late supreme court and court of chancery.

It is proper also, here to remark, that the effect of adopting this section as proposed, will be to repeal the provision of the act of last December, amending the judiciary act, (2 Laws of 1847, p. 639, sec. 5,) which gives an appeal to this court from a decision by the lake or present supreme court, upon a bill of exceptions, in either granting, or refusing to grant a new trial. This provision was a great, and in our judgment, uncalled for innovation upon the jurisdiction of the highest appellate court; at least so far as the review of a decision granting a new trial upon bill of exceptions is concerned. In the case of a refusal, a review might always have been had, and is still retained by the section we have proposed; for, in such case, final judgment follows, as a matter of course. Participating, as we do, with the legal profession, and with the community at large, in a desire that this most important court should not be unnecessarily burdened, and foreseeing, as we do, that such must be the inevitable result, if every case in which a new trial is granted by the supreme court upon a bill of exceptions, may be in the first instance brought before it for review, we have no hesitation in recommending that this new and unnecessary branch of its jurisdiction be removed.

The chief embarrassment we have met with, in fixing the right of appeal, has been in reference to the courts whose judgments should be reviewed in the first instance by the court of appeals. As to the review of judgments of the supreme court, no difficulty exists. But in reference to appeals from the superior court and common pleas in the city of New-York, if we were to regard the question as a new one, we confess we should have some hesitation. Nor do we intend, by the recommendation that this feature of the act be adopted, to conclude ourselves from proposing, in our future reports, such alterations as may strike us as expedient, in respect to an appeal from one or

both of those courts. For the present, we have deemed it advisable to adhere to the provision of the act passed in December last, amending the judiciary act, which gives an appeal from orders and decrees of those courts, in equity cases, and from their judgments at law; (2 Laws of 1817, p. 639, 642, sec. 3, 23,) except, that in respect to the latter, we have omitted the provision restricting the right of review to cases where the judgment exceeds a thousand dollars, exclusive of costs. The wisdom of such a limitation is not very apparent, and its retention seems wholly unnecessary, if not unjust. If no other reason against it were to be found, it is a sufficient one, that it gives to a defendant in all cases the right of a review directly by the court of appeals, where the sum recovered exceeds a thousand dollars, while an unsuccessful plaintiff, whose demand may be twenty times as great, must appeal to the supreme court in the first instance, unless, perchance, the costs taxed against him exceed that amount. But this provision involves a further inconsistency. The true theory of the right of appeal would seem to be, that it should be enlarged instead of being diminished, in proportion to the magnitude of the controversy. This principle is, however, reversed by the provision in question; and where the amount in controversy is very great, the party has but one appeal, while, where it is small, he has two ; first, to the supreme court, and then to the court of appeals.

2. By the second subdivision of the section under consideration, we propose, that no appeal to the court of appeals shall be allowed, in actions originally commenced before justices of the peace, or in the justices' courts existing in several of the cities of the state. This provision might safely be defended, upon the principle, that in cases involving amounts as small as constitute the utmost extent of a recovery in those courts, the spirit of litigation should be discouraged, as rendering the remedy worse than the disease. The experience and observation of those who are familiar with the business of the court of crrors, as well as with that of the court of appeals, will attest, that this class of litigation in those courts, has operated most oppressively upon the rights of suitors, as well as upon the best interests of the public. And we do not hesitate to affirm, that the extent of evil it has produced has been incalculably greater than any possible amount of good which can result from its continuance. A proper degree of weight should, undoubtedly, be conceded to the argument, that the question of right and not of mere expediency, should be the test.

But at the same time, much is due to the consideration, that the ruinous consequences of fomenting and encouraging a litigation, not adapted to bear the burdens it involves, should be seriously regarded.

It is a portion of our plan, that in no case should there be more than two appeals. There may then, in every case, be an examination of the questions by three courts; thus furnishing as strong an assurance of eventual justice, as the imperfect character of human institutions will admit. For example, the judgment of a justice may be first reviewed by a county court, and from the judgment on review, an appeal to the supreme court may be had. The judgment of a county court, or of a mayor's or recorder's court, may be in the first instance reviewed by the supreme court, and then by the court of appeals; and that of the supreme court, (which, in every instance, must be first given at a special term or circuit, by a single judge,) may be primarily reviewed by the full court at a general term, and then by the court of appeals.

In this respect, therefore, a perfect uniformity exists throughout the whole state, with the exception of the city of New-York, where, from the peculiar character of the local judiciary, a different result must follow, but one which is not of sufficient importance to justify a departure from the principle of the section under consideration. We refer to the fact, that, in that city, there can be but one appeal, where the action is originally commenced in the marine court, or in an assistant justices' court. By the existing statutes, as well as by the subsequent proposed provisions of this act, the appeal in these cases must be to the superior court. In this particular instance, we are compelled to admit that there is an apparent want of uniformity in the principle of appeal, as embodied in the proposed act; but it is one which results, as bas been already remarked, from the peculiar character of the local courts in New York, and which should not constitute an exception to the general rule, that a justices' judgment should not be reviewed by the court of appeals. There is but one way in which it can be obviated; and that is, by withholding the right of appeal to the court of appeals in the first instance, from the judgments of either the superior court or common pleas in NewYork, leaving its judgments to be first reviewed by the supreme court, and by conferring upon the court, thus excepted, the right to review the judgments of the local justices courts. For the reasons already stated, however, we have not felt called upon, at present, to recommend a change of the policy adopted by the last legislature, as to the review of the judgments of the superior court or common pleas, directly by the court of appeals. In retaining it as it now stands, with the incidents necessarily connected with it, as proposed in this act, we are fully persuaded that no injustice can result, and that no well founded complaint will be made. Should it be found in practice to be inconvenient, we shall, in our future report upon the complete organization of the judiciary, propose such change as shall be deemed necessary or advisable.

$ 12. The court of appeals may reverse, affirm, or modify the judgment or order appealed from; and its judgment shall be remitted to the court below, to be enforced according to law.

The same, in substance, as provided in the judiciary act of 1847. (1 Laws of 1817, p. 321, sec. 10.)

§ 13. There shall be six general terms, in each year' to commence on the first Tuesday of January, March May, July, September and November, and to continue until the fourth Saturday thereafter, inclusive, unless all

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the causes ready for hearing be sooner heard.

They may, however, be continued as much longer as the court shall deem necessary.

Additional terms may also be held, by order of the court.

This provision is intended as a substitute for so much of the ninth section of the judiciary act, (1 Laws of 1847, p. 321,) as provides for at least four terms of the court of appeals in each year, at such times as the court shall appoint, and to be continued as long as it shall deem necessary.

It is not intended, at present, to interfere with the power of the court to fix the places of holding the terms, (as regulated by the section just referred to,) and which are required to be so arranged, as that there shall be a term once in every two years in cach of the judicial districts. We shall hereafter make such recommendation on this subject, as may be deemed advisable.

§ 14. The concurrence of five judges shall be necessary, to pronounce a judgment. If five do not concur, the appeal shall be reheard.

By the sixth section of the judiciary act, (1 Laws of 1817,
p. 321, sec. 6,) six judges of the court of appeals constitute a
quorum, and four, therefore, may pronounce a judgment.

By the present practice, upon an equal division of the court,
the judgment below is affirmed. But it is well settled, that
such an affirmance merely determines the particular case, and
leaves the questions involved in it, open for consideration in
any future case in which they may arise. (Bridge v. Johnson,
5 Wend. 342; The People v. The Mayor and Aldermen of the
City of New York, 25 Wend. 252.) Besides, as was decided
by the court of errors, in the case last cited, and by the supreme
court of the United States, in Martin v. Hunter's Lessee, 1
Wheat. 355, a rehearing in such case, cannot, in the absence of
statutory authority, be allowed.

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