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§ 38. No jury shall hereafter be summoned for a county court, except as provided in the last section, nor shall a grand or petit jury be summoned for a court of general sessions of the peace, (except in the city and county of New York,) unless so directed by the board of supervisors of the county.
The last five sections are designed to effect a greater degree of simplicity and expedition in the proceedings of the county courts, than can be attained under the existing statutes, and to dispense with an unnecessary attendance of jurors, upon the terms of those courts and, (except in the city of New-York,) upon the courts of general sessions. By the judiciary act, it is provided, that as many terms of the county court in each county, except New-York, shall be held, as the judge shall appoint; and that he shall designate as many of those terms in each year, for the trial of issues of fact by jury, as there were formerly terms of the common pleas in the county; for which jurors shall be summoned, as was formerly required in the courts of common pleas. (1 Laws of 1847, p. 327, sec. 26, 27.)
As respects the first part of the provision just referred to, we deem it more convenient that the terms of the courts should be specifically prescribed by statute, and have accordingly proposed, by section 34, for the holding of six general terms, annually, of each of the county courts, on the first Tuesday of January, and of each subsequent alternate month. The character of the business to be transacted at those terms is also changed by the same section, so as to conform it to the change in the jurisdiction of these courts, as proposed by this act. The distinction between jury and other terms, as provided by the judiciary act, arose entirely out of the jurisdiction in ordinary actions, conferred upon these courts by that act, and which, for the reasons stated in a previous note, (p. 39–47,) it is proposed to take away. Should this be done, the jurisdiction of the county courts, which will remain, will be cither summary in its nature, or restricted to that class of actions in which a jury trial will seldom be required; and the stated attendance of jurors, and consequent expense to the county, will become wholly unnecessary. It is, therefore, provided in the same section, that these terms shall be held for the final hearing of actions or proceedings, and that the court shall be deemed always open for the transaction of any other business.
By sections 35, 36, and 37, provision is made for the trial of issues of fact. These are to be tried by the court in all cases, unless on motion of either party a jury trial be ordered. It is scarcely necessary to say, that in the special proceedings to which the jurisdiction of the court will extend, this is the more convenient mode of trial, as well as perfectly consistent with the constitution. They are not cases in which trial by jury "has been heretofore used,” (Const. art. 1, sec. 2,) and may therefore be tried in any other manner, unless, for good cause, the court otherwise direct. When they do so, provision is made that the jury be specially summoned to attend, either in or out of term, to try the issue ; and to such trial the rules appertaining to ordinary trials are applied.
The 38th section carries out the principles just referred to, by dispensing with the attendance of jurors at the general terms of the county courts. With a view, also, to prevent the attendance of grand and petit jurors, (except in the city of New York,) where it may be unnecessary, a discretionary power is vested in the board of supervisors, as to the propriety of requiring such attendance.
As the subject of proceedings in criminal actions is not embraced in this report, we recommend, for the present, that the boards of supervisors, of the several counties, be authorized, in their discretion, to dispense with the attendance of jurors, at such terms of the county court, as they may see fit. The frequent occurrence of the oyer and terminer, which is held with every circuit court, will, it is believed, in most of the counties, dispense with the necessity of jurors at the general sessions. That court has, by the existing laws, jurisdiction in many cases which do not require a jury, and which it will still continue to exercise. The annual meeting of the several boards of supervisors, will occur after the lapse of sufficient time, to enable them to form a satisfactory judgment, as to the propriety of requiring the attendance of juries at these courts. In the cities, where offences are more frequent, and in some of the large counties, that necessity may exist; but in the agricultural districts it would impose an unnecessary burthen.
Of the Superior Court and Court of Common Pleas, in the city of New-York, and the Mayors' aud Recorders' courts in other cities.
SECTION 39. Jurisdiction of the courts named in this title.
40. Jurisdiction of the New-York superior court, on appeal.
$ 39. The jurisdiction of the superior court of the city of New York, of the court of common pleas for the city and county of New York, of the mayors' courts of the cities of Albany, Hudson, Troy, and Rochester, and of the recorders' courts of the cities of Buffalo and Utica, shall extend to the following actions :
1. To the actions enumerated in section 103, 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 shall reside or be personally served with the summons, within those cities, respectively;
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.
§ 40. The superior court of the city of New York shall also have power to review the judgments of the marine court of the city of New York, and of the assist. ant justices' courts in that city.
The jurisdiction of these courts is scattered through a mass of special statutes, which it is neither necessary nor profitable to review. They will be found collected in 2 R. S. 3d ed. 272–317. In one essential particular, which is preserved in this title, their powers are the same,-namely, in local actions arising within their localities, and in transitory actions, wherever they may have arisen, subject, however, to the general power of the supreme court, as provided by the judiciary act, (1 Laws of 1847, p. 333, sec. 49,) to order an issue of fact joined in any court whatever, to be tried in any other county, on good cause shewn, and on such terms as it may prescribe. In this particular, we propose to continue the jurisdiction of these courts, substantially as at present, with such variations of language only, as are rendered necessary by the proposed change in relation to actions and their incidents. This is sufficiently accomplished by the first subdivision of section 39.
The other subdivisions of that section limit the jurisdiction of these courts in all other actions, to cases where all the defendants reside, or are personally served with the summons within the local jurisdiction of the court; and in actions against corporations, to cases where they transact their general business, or keep an office for the transaction of business, or are established by-law, within the locality. This provision is necessary, inasmuch as, by subsequent provisions, the summons may be served without the jurisdiction of the court, by publication. But for this provision, therefore, the plaintiff might in any case proceed against the defendant in a local court, though the defendant neither resided nor was served with the summons, nor did the cause of action arise, within its local jurisdiction.
Some of the local courts, out of the city of New York, embraced in this title, have at present the right to review the judgments of justices' courts, upon appeal and certiorari. This jurisdiction we have proposed, in the title, “Of appeals,” and also by the first subdivision of section 33, (p. 37,) to transfer exclusively to the county courts. There being no county court in the city and county of New-York, we propose to continue the power of the superior court to review the judgments of the local and inferior courts in that city. And, as will be here after seen, we have substituted for the present mode of reviewing such judgments, an unisorm, simple and convenient system of appeal.
§ 41. The superior court of the city of New York, and the court of common pleas, for the city and county of New-York, shall, within twenty days, appoint general and special terms of those courts respectively, and prescribe the duration thereof; and they may, from time to time, respectively, alter such appointments.
§ 42. A general term shall be held by at least two of the judges of those courts respectively, and a special term by a single judge.