$41. Three justices of superior court to be elected. [Same as § 41 in 1849, when it was first passed.]

Three justices of such superior court, in addition to the justices now holding office, shall be elected by the electors of the city and county of New York, at the annual charter election to be held in that city on the second Tuesday of April, one thousand eight hundred and forty-nine.

§ 42. How voted for. (Same as § 42 in 1849, when it was first passed.)

Such justices shall be voted for together on one ballot, which shall be distinct from any other ballot at the same election, and deposited in a separate box marked "superior court." The votes shall be canvassed and certified in the same manner as votes for the recorder of the city of New York, and a certificate thereof shall be filed with the secretary of state.

§ 43. How classified. (Same as § 43 in 1849, when it was first passed.)

The justices so elected shall, immediately after the votes are canvassed, be classified by lot, to be publicly drawn by the register and clerk of the city and county of New York, in the presence of the mayor or recorder of the city of New York, and the certificate of such drawing and classification shall be signed by such register and clerk and by the attending mayor or recorder, and filed in the offices of the register and clerk. The classes shall be numbered first, second, and third, according to the term of service of each; the first class being that which has the shortest time to serve. The term of offices of each of such justices shall commence on the first day of May, one thousand eight hundred and forty-nine, and the term of the justice of the first class shall expire on the thirty-first day of December, one thousand eight hundred and fifty-one; of

the justice of the second class, on the thirty-first day of December, one thousand eight hundred and fifty-three; and of the justice of the third class, on the thirty-first day of December, one thousand eight hundred and fifty-five.

§ 44. Expiration of terms and vacancies—how filled. [Same as § 44 1849, when it was first passed.]

After the expiration of the terms of office under such classification, the term of office of all the justices of the superior court of the city of New York shall be six years; and any vacancy occurring in the offices created by this title, shall be filled in the manner prescribed for filling vacancies in the offices of the present justices.

§ 45. Powers of judges and their salaries. [Same as § 45 in 1849, when it was first passed.]

The justices elected pursuant to this title, subject to the provisions contained in section forty-nine, shall have the same powers, and perform the same duties, in all respects, as the present justices of such superior court, and shall receive the same salaries, payable in like manner.

$46. Terms of superior court and by whom held. [Same as § 46 in 1849, when it was first passed.]

A general term of the superior court may be held by any two of the six justices thereof, and a special term by any one of them; and general and special terms, one or more of them may be held at the same time.

§ 47. Certain civil suits may be transferred from the supreme to the superior court. [This section was amended in 1851, by an act passed January 16, 1851, Session Laws, 1851, p. 8, by striking out the words "herein provided for." But the amended

Code of 1851 was passed subsequently, as a whole Code, July 10, 1851, retaining those words, leaving the section as it was passed in 1849.]

All civil suits at issue at the time of the passage of this act, that from and after the first of May, 1849, shall be placed upon the calender of the supreme court at any general or special term thereof, to be held in the city of New York, and which shall be in readiness for hearing on questions of law only, or are equity cases, may by an order of that court or of the judge holding such special term be transferred to the said superior court of the city of New York, and to be heard at the general terms thereof, hereinafter provided for.

1. Question. Had this court jurisdiction of a cause transferred, which was not in readiness for hearing in the supreme court.

Answer. In Giles agt. Lyon, 4 Comst., 601, April, 1851, GARDINER, J., said: The suit was commenced in the supreme court in Deceinber, 1818, and was subsequently transferred to the superior court in the city of New York, as appears by the pleadings and the captions of the decrees made in the cause in pursuance of the 47th section of the amended Code of 1819. By that section, the supreme court is authorized, by order, to transfer to the superior court all civil suits at issue at the passage of the act (12th April, 1849), that from and after the first of May, 1849, shall be placed upon the calendar of the supreme court in the city of New York, and which shall be in readiness for hearing on questions of law only, or are equity cases. That the cause was not in readiness for a hearing when transferred, is clear; because the appellant had distinctly put in issue by his answer to the complaint, the representative character of the respondents. That fact was indispensable to the relief sought, and must be established before there could be a decree that the defendants interplead. Again, the decree recites that the cause was heard on the pleadings and documentary proof taken at the hearing in the superior court. The suit therefore was neither "in readiness for hearing" in the supreme court, nor did its determination involve "questions of law only." The phrase "equity cases," therefore, occurring in the forty-seventh section must be contined to suits in equity, commenced prior to July, 1848, and then pending in the supreme court. The accumulation of causes of this character in the former court of chancery and the embarrrssed condition of the new courts, particularly those in the first district, in consequence of their transfer to them was notorious; and one great object in creating a new branch of the superior court was to relieve the supreme court of that district from the burden of investigating and determining causes which were not properly their own. The forty-seventh section was designed as a remedy for the difficulty, and framed accordingly. It is in terms limited to suits at issue at the passage of the act of which it is a part. This, in effect, would confine the operation of the provision to suits in equity, pending on the 1st of July, 1848, as very few cases under the new system would have been commenced and put t Issue during the intervening period. But however this might have been, they were not "equity cases." None thus distinguished could be commenced, put at issue or upon the calendar after the first of July. (§ 69.) There could be ao complainant; the distinctive appellation of the prosecuting party under the old system of practice. (§ 70.) By the construction suggested the forty-seventh section is sensible and consistent with the subsequent provisions and the general design of the statute.

In Marsh agt. Benson, 19 How., 415, General Term, July, 1860, PARKER, J., said: In Giles agt. Lyon, (4 Comst., 601,) the court of appeals decided, that the 47th section of the amended code of 1849, authorizing the supreme court to transfer "equity cases" to the superior court of the city of New York, applied only to suits in equity commenced under the previous system, and did not authorize the transfer of an action commenced under the code although such action was strictly equitable according to former distinctions. The construction of the phrase "equity cases' in that section, was the question to be

decided and the decision was as above. Judge GARDINER in giving the opinion of the court states a sufficient reason for the decision; indeed such being the object for which the 47th section was framed the construction of the phrase arrived at was inevitable.

§ 48. Jurisdiction of the superior court in such cases. [Same is § 48 in 1849, when it was first passed.]

The said superior court shall have jurisdiction of every suit so transferred to it, and may exercise the same powers in respect to every such suit, and any proceedings therein, as the supreme court might have exercised if the suit had remained in that court,

§ 49. Judges to hear for two years suits transferred from supreme court. [This section was repealed in terms by the laws of 1851, p. 8, by an act passed January 16, 1851. Subsequently the amended Code of 1851 was passed as a whole Code, on the 10th of July, 1851, retaining this section the same as passed in 1849.]

It shall be the special duty of the three justices to be elected under the provisions of this title, and of their successors, to devote their time and labors, for the term of two years from the first of May, one thousand eight hundred and forty-nine, to the hearing and determination of the suits transferred from the supreme court, and for that purpose they, or any two of them, shall hold a general term of the said superior court, of at least two weeks in duration, in each month of the year, except the month of August.

$50. Appeal to the court of appeals. [Same as § 50 in 1849, when it was first passed.]

Appeals from the judgments of the superior court, in such suits, may be taken to the court of appeals, in the same manner as from the judgments of the superior court in actions originally commenced therein.

§ 51. Section 28 applied to superior court. [Same as § 51 in 1849, when it was first passed.]

The provisions of section twenty-eight of this act shall apply to the said superior court.

1. Question. What expenses may be incurred and are a proper county charge under this section?

Answer. The answer will be found under § 28, Q. 1.