45. The city judge of the city of New York, has jurisdiction in summary proceedings.

$34. Court of common pleas for New York has power to review judgments of the marine and justices' courts.

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.

1. Question. Has this section been amended since its passage in 1848 ? Answer. It has, once in 1849, which amendment reads as above.

2. Q. How did this section read in 1848?

A. As follows:

40. [1848.] 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 assistant justices' courts in that city.

Questions.

3. Q. What jurisdiction is given by statute to this court in other proceedings?

4. Q. Has the common pleas jurisdiction of an appeal directly from the special term of the

marine court?

5. Q. Has the common pleas jurisdiction to review on appeal judgments in summary proceedings?

6. Q. Has the common pleas jurisdiction to award the custody of infants?

7. Q. Has any judge of the common pleas equal powers with the first judge in reference to proceedings to compel the delivery over of books and papers by public officers ?

8. Q. Have the common pleas power to correct an error in a judgment rendered by a justice of the peace through inadvertance for a wrong amount?

9. Q. Can the common pleas of the city of New York take the place of a county court in carrying out the laws of 1860, regulating assignments for the benefit of creditors?

10. Q. Has the New York Common Pleas authorily to commit a person assessed or taxed, for neglect to pay the tax?

3. Q. What jurisdiction is given by statute to this court in other proceedings? A. The act of 1854, gives the common pleas jurisdiction to remit fines and forfeited recognizances, in the same cases and in like manner as such power was conferred on the late courts of common pleas, and to correct and discharge the dockets of liens, and of judg ments 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 this court prior to the Code.

In The People agt. Lott, Sheriff, &c., 21 Barb., 130, General Term, November, 1855, MITCHELL, J., it was decided, that where in a case since the act of May 7th, 1844, for the establishment and regulation of the police of the city of New York, a recognizance

given for the appearance of a party to answer to a criminal charge before the court of sessions, on being forfeited, is filed by the district attorney, with a certified copy of the order of the court, forfeiting the same in the office of the county clerk, and the clerk dockets the same in the book of judgments kept by him, this becomes a judgment of the court of common pleas, and may be described as such. And such judgment is a lien on real estate, from the time of filing the recognizance and copy order, and docketing the same, and execution may be issued in the same form, as on a judgment recovered in the court of common pleas in an action of debt. And on filing a transcript of such judgment in the clerk's office of any other county, in which the defendant has property, execution may be issued to the sheriff of that county.

In The People agt. Petry, 2 Hilt., 525, Special Term, July, 1858, HILTON, J., it was decided, that a judgment entered upon a forfeited recognizance, and docketed with the county clerk, becomes subject to the jurisdiction and control of this court in the same manner as other judgments, and as if it had been docketed in the court. (Laws of 1845, ch. 229, p. 250.) And in addition, the power is conferred upon this court to remit all or any part of such forfeiture, or to discharge such recognizance upon such terms as shall appear just and reasonable. (Laws of 1818, p. 307; Laws of 1854, ch. 198, p. 464, § 6.) 4. Q. Has the common pleas jurisdiction of an appeal directly from the special term of the marine court?

4. In The People agt. Gale, 13 How., 5, Special Term, 1856, CLERKE, J., S. C., 22 Barb., 502, General Term, June, 1856, RoOSEVELT, J. and S. C., 13 How., 260, Court of Appeals, October, 1856, MITCHELL, J., it was decided, that the court of common pleas has no power or jurisdiction to hear an appeal upon a judgment of the marine court until it has been first heard at a general term of the latter court. The provisions of the Code must be considered as so modified by the act of 1853, that the return to the common pleas shall be made by the general term of the marine court, and the appeal be made in twenty days after the judgment of such general term.

In People agt. Justices of Marine Court, 11 Hour., 400, Special Term, Sept., 1855, CLERKE, J., it was decided, that there is no provision for a motion for a new trial before a single judge at special term in the marine court, as in the supreme court. But questions which form an application for a new trial, whether upon exceptions raising questions of law merely, or as against the weight of evidence, may be heard and determined by the marine court upon appeal at general term. Appeals from the marine court to the common pleas, can only be taken on decisions of the general term of the marine court. 5. Has the common pleas jurisdiction to review, on appeal, judgments in summary proceedings?

A. In People agt. Willis, 5 Abb., 211, Special Term, September, 1857, DAVIS, J., it was decided that the provisions of the Code, as amended in 1852, confer no power upon the court of common pleas to entertain appeals from the judgments of the officers authorized to entertain summary proceedings. The court of appeals have decided this question in the case of Benjamín agt. Benjamin (1 Seld. 383), by holding that the Code, by section 471, exempts proceedings of that sort from its operation. It follows, therefore, that the only mode of review of these proceedings, in the city of New York, is by the writ of certiorari issuing out of this court.

"Per contra." Davis agt. Hudson, 5 Abb., 61, N. Y. C. P., General Term, July, 1857, INGRAHAM, J.

6. Q. Has the common pleas jurisdiction to award the custody of infants?

A. In The Matter of De Angelis, 1 Code R., N. S., 351, Special Term, July, 1851, EDMONDS, J. it was decided that, how far section 471 of the Code excludes the court of common pleas from all jurisdiction in actions for divorce or separation, I am not called upon to say but it is very clear that the protective jurisdiction over infants, which was inherent in the court of chancery from its organization, and also that conferred on that court by the Revised Statutes, has never been conferred on the court of common pleas, whatever may be thought of its jurisdiction over actions for a divorce.

7. Q. Has any judge of the common pleas equal powers with the first judge in reference to proceedings to compe: the delivery over of books and papers by public officers?

A. In Decelin agt. Platt, 20 How., 167, N. Y. C. P., Special Term, January, 1861, HILTON, J., it was decided that each judge of the court of common pleas is invested with all the powers of the first judge of the county, and can act as such in any statutory proceeding which may be instituted before such an officer; consequently any judge of the court has jurisdiction in proceedings under the Revised Statutes (1 R. S. 124, §§ 50, 53), to procure the delivery of books and papers appertaining to a public office.

8. Q. Have the common pleas power to correct an error in a judgment rendered by a justice of the peace, through inadvertence, for a wrong amount?

A. In Hardy agt. Seelye, 5 Abb., 103, N. Y. C. P., General Term, April, 1856, BRADY, J., it was decided that, where a justice of the peace renders judgment for a wrong

amount, through inadvertence, the common pleas have no power to correct the error; they can only reverse the judgment and allow a new action to be brought.

9. Q. Can the common pleas of the city of New York take the place of a county court, in carrying out the laws of 1860, regulating assignments for the benefit of creditors?

A. In Barbour agt. Everson, 16 Alb., 367, Special Term, May, 1861, INGRAHAM, J., said: "It is by no means clear that this statute (Laws of 1860, p. 594, ch. 348) can be carried out fully in this county. We have no county judge to perform the duties required by that act. There can be no county judge in this county, and although, for certain purposes, the court of common pleas has discharged duties of a certain class pertaining to county courts, it may well be doubted whether the provisions of this statute can be enforced in this county without further legislation.

10. Q. Has the New York Common Pleas authority to commit a person assessed or taxed, for neglect to pay the tax?

4. In Matter of Israel Kahn, 19 How., 475, Special Term N. Y. Superior Court, September, 1860, BoSWORTH, J., it was decided, that a person residing in the city of New York, and taxed upon his personal property, may be punished as for a contempt, on account of his neglect to pay it. Where the commitment is specified and declared in a proper manner, and the contempt specially and plainly charged in the commitment pursuant to the statute, the court of common pleas have authority under the statutes, to commit for such contempt; and no court or officer who is forbidden by law to review the accuracy of the decisions of the common pleas, on a proceeding by habeas corpus, can discharge the individual in contempt from custody.

See section 352 and note, as to the manner of review, &c. Also, see section 427 and note, as to actions brought in the common pleas against foreign corporations.

An elaborate and able historical account of the organization, jurisdiction and judicial progress of the court of common pleas for the city and county of New York, will be found in 1 E. D. Smith's Reports from under the pen of that very learned judicial scholar and eminent judge, Hon. CHARLES P. DALY.

What is the result of the decisions under this section?

1. The common pleas has jurisdiction under the statute of 1854, to remit fines and forfeited recognizances, and to correct and discharge the dockets of liens and judgments entered upon recognizances, and to exercise all the powers and jurisdiction now or hereafter conferred upon er vested in the said court, or the county courts in their counties, and also such power and jurisdiction as was vested in the court of common pleas for the city and county of New York before the passage of the Code of 1848.

2. Where a recognizance is given for the appearance of a party to answer a criminal charge before the court of sessions, on being forfeited, is filed with a certified copy of the order of the court, forfeiting the same, in the office of the county clerk, and the clerk dockets the same in the book of judgments kept by him, this becomes a judgment of the court of common pleas, and the same proceedings to enforce it are to be had as in other judgments of that court.

3. A judgment entered with the county clerk, upon a forfeited recognizance, becomes subject to the jurisdiction and control of the court of common pleas, to the same extent as if it had been docketed in it. 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.

4. The right of appeal from the marine court to the common pleas, was not taken away by the act of 1853, but such an appeal can only be taken from an actual determination or judgment of the marine court made at its general term.

5. There is no provision for a motion for a new trial before a single judge at special term in the marine court, as in the supreme court; but questions which form an application for a new trial, may be heard and determined by the marine court upon appeal at general term. And appeals from the determinations of the general term only can be taken to the common pleas.

6. The court of common pleas has no power to entertain appeals from the judgments

of a district (justices) court in the city of New York, in summary proceeedings to recover the possession of lands.

7. The common pleas has no jurisdiction to award as to the custody of children pending an action for a divorce of the parents of such children. Whether it has any jurisdiction of an action of divorce. quere?

8. Either judge of the common pleas has equal powers and jurisdiction with the first judge in proceedings under the Revised Statutes, to compel the delivery over of books and papers by public officers.

9. The common pleas have no power to correct an error of a justice of the peace in rendering a judgment for a wrong amount. They can only reverse the judgment and allow a new action to be brought.

10. It seems doubtful if the laws of 1860, ch. 348-regulating assignments for the benefit of creditors, can be carried out fully in the city and county of New York, as there is no county judge in that county, to perform the duties required by that act. The provisions of that statute do not authorize the common pleas to enforce it.

11. The common pleas have authority, under the statutes, to commit a party for contempt in refusing to pay the tax imposed upon him for his personal property

$35. General and special terms of the superior court and common pleas to be appointed. [Same as § 41 in 1848.]

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; and hereafter no fee shall be paid for any service of a judge of either of those courts.

§ 36. By whom held. [Same as § 42 in 1848.]

A general term shall be held by at least two of the judges of those courts respectively, and a special term by a sin le judge.

1. Question. What arrangement is made by the judges for hearing motions? Answer. In Cobb agt. Lackey, 12 How., 202, At Chambers, Superior Court, BOSWORTH, J., said: "In vacation, the only justice before whom orders by default can be properly taken is the one sitting in chambers for the purpose of hearing motions. In term time, such defaults can only be granted by the justice holding the special term, in the room which he occupies for such business. When counsel of both parties attend, they as well as counsel applying for ex parte orders, may go before any justice who may be in attendance at any of the rooms of the court."

$37. Judgment, where given. [Same as § 43 in 1848.]

Judgments upon appeal shall be given at the general term ̧ all others, at the special term.

1. Question. What has been decided respecting the terms where judgments, other than for money demands arising on contract, will be given?

Answer. In Ryan agt. McCannel, 1 Code R., 93, General Term Superior Court, Febraary, 1849, THE COURT said: "The Code provides that this court shall appoint general and special terms. Section 37 of the Code enacts that judgments on appeal shall be given at general terms; all others at the special terms; which constitutes this court an appellant exclusively at the general terms. No judgments, except on appeals, can therefore be given at the general term, in suits commenced under the Code, where the intervention of the court is required. This case comes under the second clause of section 246, and the plaintiff must apply to the court either for a judgment or for relief leading to one. We think the court there designated is the special term, and not the general term. If, during the general term, we might make an order of reference under this section at chambers, we do not deem it expedient to introduce such a practice." See note to section 246 for decisions on this question.

§ 38. Concurrence of two judges necessary. [Same as § 44 in 1848.]

The concurrence of two judges shall be necessary to pronounce a judgment at the general term. If two do not concur, the appeal shall be re-heard.

$39. Criers, how appointed; salaries, how fixed. [Same as § 39 in 1849, when it was first passed.]

A crier shall be appointed by the superior court of the city of New York, and by the court of common pleas for the city and county of New York, respectively, to hold his office during the pleasure of the court. He shall receive a salary to be fixed by the supervisors of the city and county of New York, and paid out of the county treasury.

See note to section 28.

$40. Superior court, of whom to consist. [Same as § 40 in 1849, when it was first passed.]

The superior court of the city of New York shall, from the first day of May, one thousand eight hundred and forty-nine, consist of six justices.

1. Question. Have the three extra judges the same powers as the other judges?

A. In Huff agt. Bennett, 2 Code R., 139, At Chambers, Superior Court, June, 1850 OAKLEY, Ch. J., said: "To prevent its being supposed that I entertain any doubt ou the subject, I at once decide that Justice DUER has a jurisdiction co-extensive with the other justices of this court. The Code provides six justices for this court, of whom Jus tice DUER is one; and there is no distinction between these justices, each has an extent of authority equal to the other.