§ 34. [40.] (Amended 1849.) Common pleas to review certain judgments:

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.

a. To set aside a judgment of the marine or justice's court, where the defendant has failed to appear, an appeal must be brought, and the application for relief made upon the justice's return and affidavits. The court of common pleas has no jurisdiction to entertain a motion for relief in such cases until the judgment is before it on appeal. Donnell v. Cornell, 1 Code Rep. N. S., 288.

And see section 427 and note.

35. [41.] Terms.

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.

836. [42.] By whom held.

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.

§ 37. [43.] Judgments, where given.

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

b. The application for judgment on a default for not answering must be made at special term. It cannot be entertained at general term. Ryan v. M'Cannell, 1 Sand., 709; 1 Code Rep., 93; and see note to section 246, post.

§ 38. [44.] Judgment, how pronounced.

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 reheard.

$ 39. Crier.

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 ante.

§ 40. Superior court.

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.

a. This section and those which follow it to section 50 inclusive, are taken from an act passed 24th March, 1849, as amended by an act passed 10th April, 1849. (Laws of 1849, pp. 168, 487.)

41. Justices to be elected.

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.

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.

843. How classified.

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. Vacancies, how filled.

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. Judges' salaries, &c.

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.

a. The powers of these judges are co-extensive with that of the other judges of this court. Huff v. Bennett, 2 Code Rep., 139.

See Laws of 1852, cap. 44, p. 39.

§ 46. Terms..

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.

b. "In the general and special terms the calendars are called through at every term, and this has been the case from the time the special term was provided by law."-Preface to 4 Sand.

§ 47. Certain suits may be transferred.

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 calendar 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.

c. This section was amended January, 1851, (Laws of 1851, p. 8); the amendment consisted in striking out at the end of the section the words "hereinafter [in the last mentioned act called "herein before"] provided for."

d. The phrase "equity cases" in this section must be confined to suits in equity commenced prior to July, 1848, and then pending in the supreme court. Giles v. Lyons, 1 Code Rep. N. S., 257.

$48. Jurisdiction.

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. Hearing of transferred suits.

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.

a. This section [49] has been repealed, [Laws of 1851, p. 8,] and no section has been substituted.

§ 50. Appeal.

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 applied.

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

52. [45.] (Amended 1849.) Repeal of existing provisions. The provisions contained in sections two, three, and four, of the article of the revised statutes entitled "Of the jurisdiction of justices' courts," as amended by sections one and two of the act concerning justices' courts, passed May 14, 1840, and the provisions contained in sections 59 to 66 of the same article, both inclusive, are repealed, and the provisions of this title substituted in place thereof. But this repeal shall not affect any action heretofore commenced in a court of a justice of the peace.

a. Other statutory provisions relating to these courts are 2 R. S., 324 to 375; Laws of 1846, cap. 120, 140, 276; Laws of 1847, cap. 329.

The Summons.

b. The form of the summons in these courts is not governed by the court, Williams v. Price, 2 Sand., 229. But the summons should state a cause of action, Ellis v. Merrit, 2 Code Rep., 68; Cooper v. Chamberlain, ib. 142; Bray v. Andreas, 1 Smith, 387; contra, see Cornell v. Bennett, 11 Barb., 657; Smith v. Joyce, 12, ib.

21.

c. Where the defendant was summoned to answer the complaint of J. W. B., for $100 damages in action on contract, it was held sufficient. Bray v. Andreas, 1 Smith, 387.

* Mason, J., this title "has retained the mode provided in the revised statutes for the commencement of actions, and which is by summons, warrant, or attachment, and which three modes of commencing actions as such under the code constitute the only manner in which actions can now be commenced in any of the courts of this State." Ex parte Ransom, 3 Code Rep., 148,