Removal of causes into or from.

county judge should appoint, at the places designated by law for holding courts, on the days appointed by the county judge, and to continue as long as the court might deem necessary. Provision was also made for the publication of the appointment at least four weeks before the terms were held, in the State and county papers, and the county judge might designate which of such terms were to be held for the trial of issues of law, and at such terms no jury was required to attend. Code, § 31..

b. Judgments. The judgments of the court are entered in the same manner, and are of the same effect, as judgments of the supreme court. See "Judgment.'

Section 4. Present courts. The provisions of the Code as to terms and judgments are applicable to the present county courts, as pointed out in the preceding section. It may perhaps be well to notice in this place that county judges may hold terms of the court in any county of the State, except New York and Kings, when requested by the judge of such county. Const., art. 6, § 15. It is the duty of the supervisors of the several counties to furnish rooms, fuel, lights, attendants and stationery, suitable and sufficient for the transaction of the business of the court, and if they neglect so to do the court may direct the sheriff to supply them, and the expense will be a county charge. Code, § 28.

ARTICLE VI.

REMOVAL OF CAUSES INTO OR FROM.

Section 1. Early courts. Under the early practice in these courts actions might have been removed from the common pleas to the supreme court either by certiorari or by habeas corpus (See 2 Paine & Duer's Prac. 205); and we find in the act establishing these courts a provision that any action or suit might be removed from the common pleas to the supreme court, if the debt or damages laid in such action exceeded the sum of £20. Laws, Bradford's Ed. of 1694, 264. See 2 Paine and Duer's Prac. 720.

Section 2. Before 1846. Under the Revised Statutes all personal actions in which the debt or damages claimed, or the matter or thing in demand exceeded the sum of $250, might be removed into the supreme court at the instance of the defendant, by a writ of certiorari; and the following actions might be removed in the same manner whatever the amount of the demand, viz.:

Under constitution of 1846-Present courts.

1. Actions in which the people of the State were interested. 2. Actions by or against the corporation of any city. 3. Actions of ejectment, and all other actions in which the title to real estate shall come in question. 4. Actions of replevin, and for false imprisonment. 2 R. S. 404 (389), §§ 2, 4. But no matter brought into the common pleas by appeal could be removed until that court had made a final determination in the matter. Id. 406 (391), § 16.

Section 3. Under constitution of 1846.

a. Removal to. Any action 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 the papers on file therein should be transmitted to the county court. Code, § 33. Previous to the amendment of 1858, county courts had jurisdiction of causes dismissed by justice's courts on a plea of title. Cook v. Nellis, 18 N. Y. (4 Smith) 126; but see Kundolf v. Thalheimer, 12 N. Y. (2 Kern.) 593.

b. Removal from. When the county judge was for any cause incapable of acting in a case pending in the county court, it was his duty to make and file a certificate of that fact, and jurisdiction of the cause was thereupon vested in the supreme court, Laws of 1847, ch. 470, § 31; Code, § 30.

When the hearing of an appeal from a justice's judgment was removed by such proceedings, it was required to be heard in the first instance at special term, in the county where the cause was first tried. Wiles v. Peck, 16 How. 541; Davis v. Stone, id. 538; Sheldon v. Albro, 8 id. 305.

Any action brought under subdivision 1 of section 30 of the Code might be removed into the supreme court before trial, upon special motion for cause shown. Code, § 30. Section 4. Present courts. Under the amended judiciary article of the constitution there has been no change in the practice relating to the removal of causes into and from the county court, except that the act which extends the jurisdiction of the county courts also provides that any action brought by virtue of its provisions may be removed by the supreme court into that court before trial, upon special motion, for good cause shown; and the supreme court may also change the venue of such action. Laws of 1870, ch. 467, § 1.

Rules and calendars.

ARTICLE VII.

RULES AND CALENDARS.

Section 1. Early courts. When these courts were first organized, the justices and judges thereof were authorized to make, order and establish all such rules and orders, "for the more orderly practicing and proceeding in their courts," as the judges of the English courts were empowered to make. Laws, Bradford's ed. 1694, 264. See 2 Paine & Duer's Prac. 720.

Section 2. Court before 1846. The court, when re-organized under the Revised Statutes, was invested with the powers respecting its practice which it had formerly possessed previous to that time, which of course included the power to regulate the proceedings before it. See 2 R. S. 217 (208), § 1.

Section 3. Under constitution of 1846. The Code of Procedure provided that the judges of the supreme court, the superior court, and the court of common pleas of the city and county of New York, should meet once in two years, and make rules which should govern the practice of these courts, so far as applicable (Code, § 470), and all rules inconsistent with the Code were abrogated, subject to the right of the several courts to modify the same. Code, § 469.

Section 4. Present practice.

a. Rules. By an act passed in 1870 it is the duty of the general term judges of the supreme court, the chief judges of superior courts of cities, and the chief judge of the court of common pleas of the city and county of New York, to meet in convention at the city of Albany, once in two years, to revise, alter, abolish and make rules, which shall be binding upon all courts of record, so far as the same may be applicable. Laws of 1870, ch. 408, § 13. Other courts are at liberty to make rules for the transaction of their business respectively not inconsistent with such general rules. Supreme Court Rules, 91.

b. Calendars. The practice as to entering causes on the calendar, and the order of disposing of the issues thereon, is the same as that of the supreme court. Code, §§ 256, 257.

51

Appeals.

ARTICLE VIII.

APPEALS.

Section 1. Early courts. Provision was made in the act establishing the courts of common pleas, for appeals from any judgment obtained in that court, to the supreme court, provided such judgment was "above the value of £20," and from the supreme court to the governor and council for any judgment above the value of £100, and from the governor and council to their majesties' council for any decree or judgment above the value of £300. Laws, Bradford's ed. 1694, 264. See 2 Paine & Duer's Prac. 721.

Section 2. Before 1846.

a. Appeals to. Justice's judgments were, under the Revised Statutes, reviewable in the first instance by the common pleas of the county, and the judgments were removed for review either by certiorari, where the debt or damages recovered did not exceed $25, exclusive of costs, or where an issue was not joined before the justice (2 R. S. 255, § 170); or by appeal, where the recovery exceeded $25, exclusive of costs: 1. Where the judgment was rendered upon an issue of law joined between the parties. 2. Where it was rendered upon an issue of fact joined between the parties, whether the defendant was present at the trial or not. 2 R. S. 258, § 186.

The common pleas had also the power of review in certain special proceedings, as on appeal from the determination of commissioners of highways. 1 R. S. 477 (518), § 84; Laws of 1845, ch. 180. From decisions respecting lunatics. Laws of 1842, ch. 135.

b. Appeals from. For errors of law or fact a writ of error would lie from these courts to the supreme court. 1 Paine & Duer's Prac. 229. The writ was granted by a justice of the supreme court, or by a clerk of that court, or by an officer authorized to perform the duties of justice of the supreme court. 2 R. S. 617 (595), § 25. The court of common pleas could not grant a writ of error coram nobis. People v. Oneida Common Pleas, 20 Johns. 22. See People v. New York Common Pleas, 4 Wend. 215.

Under constitution of 1846.

Section 3. Under constitution of 1846.

a. In general. Until the adoption of the Code the practice respecting appeals to and from the county courts was the same as it had been previous to the constitution of 1846. See 4 Stat. at Large, 560, 565, §§ 17, 35.

b. Appeals from. When the Code was adopted a great change was effected in the mode of reviewing judgments and orders in civil actions. The old writ of certiorari was abolished, and the only mode of review was declared to be by appeal. Code, § 323. Appeals were allowed to the general term of the supreme court from a judgment of the county court, or from an order made by a county court or a county judge affecting a substantial right in any action or proceeding. Code, § 344. And from thence to the court of appeals. Code, § 11. But, when the action was originally commenced in a justice's court, an appeal could not be taken to the court of appeals unless the general term of the supreme court made an order allowing such appeal before the end of the next term after the judgment was entered. Code, § 11; Wait v. Van Allen, 22 N. Y. (8 Smith) 319.

c. Appeals to. These courts have exclusive power to review, in the first instance, judgments rendered in civil actions by justices of the peace. Code, § 30.

In special proceedings they have the power of review in certain cases prescribed by statute, as, on appeal from the determination of commissioners of highways (1 R. S. 477 [518], § 84; Laws of 1845, ch. 180); and from summary proceedings before a justice of the peace to recover the possession of land. Laws of 1849, ch. 193.

Section 4. Present practice. Since the adoption of the amended article of the constitution in 1869, the practice on appeals to and from the county court in actions, and in special proceedings, remains as it existed under the constitution of 1846. See preceding section.