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CHAPTER III.

CIVIL JURISDICTION OF THE PRINCIPAL COURTS OF RECORD; ORGANIZATION, MEMBERS, AND OFFICERS THEREOF; DISTRIBUTION AND DISPATCH OF BUSINESS THEREIN.

TITLE I. THE COURT OF APPEALS.

TITLE II. THE SUPREME COURT, INCLUDING THE

CIRCUIT COURTS.

TITLE III.-THE SUPERIOR CITY COURTS.

TITLE IV. -THE MARINE COURT OF THE CITY OF NEW-YORK.

TITLE V.-THE COUNTY COURTS.

TITLE I.

The court of appeals.

ARTICLE 1. Jurisdiction, and mode of exercising the same; general

powers; terms and sittings.

2. The clerk of the court.

3. The State reporter; publication and distribution of the reports.

ARTICLE FIRST.

JURISDICTION, AND MODE OF EXERCISING THE SAME GENERAL POWERS; TERMS AND SITTINGS.

S30. 190. Cases in which court of appeals has jurisdiction.

191. Exceptions and qualifications.

192. Appeals from certain orders, how heard.

193. Court may make rules.

194. Remittitur; when judgment absolute to be rendered, and proceedings thereupon.

195. Second and subsequent appeals.

196. Times and places of holding terms.

197. Court may be held in any building; adjournments.

198. Officers to be appointed by court.

$ 190. [Amended, 1882] Cases in which court of peals has jurisdiction.-The court of appeals has exsive jurisdiction to review, upon appeal, every actual demination, made at a general term, by the supreme court, or either of the superior city courts,* in either of the followcases and no others:

*See Laws 1886, chap 418; Laws 1887, chap. 435.

1. Where a final judgment has been rendered, in an action commenced in either of those courts, or brought there from another court; and upon such an appeal, to review an interterlocutory judgment or intermediate order, involving the merits, and necessarily affecting the final judgment.

2. Where an order has been made in such an action,*affecting a substantial right, and not resting in discretion, which either (1) in effect determines the action, and prevents a final judgment, or (2) discontinues the action, or (3) grants or refuses a new trial, or (4) strikes out a pleading, or part of a pleading, or (5) decides an interlocutory application, or a question of practice, or (6) determines a statutory provision of the State to be unconstitutional, and the determination appears from the reasons given for the decision, or is necessarily implied in the decision. 3. Where a final order, affecting a substantial right, has been made in a special proceeding, or upon a summary application in an action, after judgment; and, upon such an appeal, to review an intermediate order, involving the merits, and necessarily affecting the order appealed from.

4. When an interlocutory judgment has been entered on the decision of a demurrer, provided that the appeal shall be taken within sixty days after the service on the attorney for the appellant, of a copy of the judgment and notice of the entry thereof, and provided also that, excepting in the case of appeals now pending, the general term shall certify that in its opinion the question arising therein is of sufficient importance to render a decision by the court of appeals desirable before proceeding farther.

So much of the provisions of the subdivision hereby added to said section one hundred and ninety as precedes the second proviso thereof shall apply to appeals already pending in the court of appeals, as well as to those which may hereafter be brought, excepting that so much of said subdivision as limits the time for the taking of said appeals shall not be applicable to appeals already pending.

Co. Proc., 11, am'd. Paddock v. Springfield, 12 N. Y. 591; Tompkins .Hyatt, 19 id. 534; Morris v. Merrange, 38 id. 172; Platt v. Platt, 13 AIL. L. J. 100; De Barante v. Deyermand, 41 N. Y. 35; Leland v. Hathorne, 9 Abb. N. S. 97; s. c., 42 N. Y. 547; Gregory v. Cryder, 10 Abb. N. S 289; Townsend v. Hendricks, 40 How. 143; Yates v. North, 44 N. Y. Kain . Delano, 11 Abb. N. S. 29; Bush v. Treadwell, id. 27.

1;

$191. [Amended, 1877.] Exceptions and qualific tions. But the jurisdiction, conferred by the last see tion, is subject to the following limitations, exceptions. and conditions:

1. An appeal cannot be taken, from an order granting & new trial, on a case or exceptions, unless the notice of appeal contains an assent, on the part of the appellant, that if the order is affirmed, judgment absolute shall be rendered against the appellant.(1)

2. An appeal cannot be taken, in an action commenced in a court of a justice of the peace, or in the city court of the city of New-York, or in a district court of that city, or in the city court of Yonkers, or in a jus *See post, $192.

tices' court of a city, unless the court below allows the appeal, by an order made at the general term which rendered the determination, or at the next general term after judgment is entered thereupon.(2) An action discontinued because the answer set forth matter showing that the title to real property came in question, and afterward prosecuted in another court, is not deemed to have been commenced in the court wherein the answer was interposed, within the meaning of this sub-division. (3)

3. An appeal cannot be taken from a judgment, or from an order granting or refusing a new trial, except in an action or special proceeding affecting the title to real property, or an interest therein, if the matter in controversy, excluding costs, is less than five hundred dollars; unless the court below, by an order made at the general term which rendered the determination, or at the next general term after judgment is entered thereupon, allows the appeal, on the ground that a question of law is involved, which ought to be reviewed by the court of appeals.(4)

If an appeal is taken, by the plaintiff, from a judgment rendered in an action not founded upon a contract, the sum for which the complaint demands judgment, or, if the action is to recover one or more chattels, the value of the chattels, as stated in the complaint, is deemed to be the amount of the matter in controversy, within the last subdivision, unless the defendant has interposed a counterclaim; in which case the counterclaim must be included, in determining the amount in controversy.

Co. Proc., part of 11; L. 1871, ch. 282,8; L. 1874, ch. 322 (9 Edm. 895), (1) Arnold v. Robertson, 50 N. Y. 683; Cobb v. Hatfield, 46 id. 533. (2) Heinrich. Kom, 47 N. Y. 658; Jackson v. Purchase, 1 Hilt. 357; 8. c., 14 How. 230; Palmer v. Moeller, 9 Abb. 20; Drucker v. Patterson, 2 Hilt. 135; Clapp v. Graves, id. 243; Younghanse v. Fingar, 47 N. Y. 99; Smith . White, 23 id. 572. (3) Flora v. Carbean, 38 N. Y. 111; Wait. Van Allen, 22 id. 319; Hoffenberth. Muller, 12 Abb. N. S. 221; 8. C 6 Trans. App. 231. (4) King v. Galvin, 62 N. Y. 238; Ryan v. Waule, 63 1d. 57; Roosevelt v. Linkert, 15 Alb. L. J. 46; People v. Horton, 64 N. Y. 68; Butterfield . Rudde, 58 id. 489; Sprague v. Western Union Co., 64 1d. 658; Produce Bank v. Morton, 1 Abb. New Cases, 174.

$192. [Amended, 1887.] Appeals from certain orders, how heard. An appeal from an interlocutory judgment overruling or sustaining a demurrer, and an Appeal from an order under subdivision second of the at section but one, except an order which in effect ermines the action and prevents a final judgment,

or discontinues the action, or grants or refuses a new trial upon a case or exceptions, may be noticed for hearing on a motion day and heard as a motion.

$193. Court may make rules.-The court may from time to time make, alter, and amend, rules, not inconsistent with the constitution or statutes of the State, regulating the practice and proceedings in the court, and the admission of attorneys and counsellors at law, to practice in all the courts of record of the State.

L. 1870, ch. 203, § 2; and L. 1871, ch. 486, § 1.

§ 194. Remittitur; when judgment absolute to be rendered, and proceedings thereupon. - The judgment or order of the court of appeals must be remitted to the court below, to be enforced according to law (1) Upon an appeal from an order granting a new trial, on a case or exceptions, if the court of appeals determines that no error was committed in granting the new trial, it must render judgment absolute upon the right of the appellant; and after its judgment has been remitted to the court below, an assessment of damages, or any other proceeding, requisite to render the judgment effectual, may be had in the latter court.(2)

Co. Proc., parts of 11 and 12. (1) Wilmerding v. Fowler, 15 Abb. N. S. 86; Brown v. Leigh, 50 N. Y. 427; Cushman v. Hadfield, 15 Abb. N. S. 109; Langley v. Warner, 2 Code, 97: Walters v. People, 19 Abb. 212; Thompson v. Blanchard, 2 N. Y. 560. (2) People v. Lacoste, 37 N. Y. 197.

195. Second and subsequent appeals. Upon a second and each subsequent appeal, including a case where a former appeal has been dismissed for a defect or irregularity, the time of filing the return, upon the first appeal, determines the place of the cause upon the calendar.

Id., part of 13. See post, 22 789-793.

§ 196. Times and places of holding terms. — The terms of the court of appeals must be appointed to be held, at such times and places as the court thinks proper, and continued as long as the public interest requires.

L. 1870, ch. 203, part of 1; L. 1849, ch. 333, part of 1.

§ 197. Court may be held in any building; adjourn ments. A term of the court may be appointed to be held in a building, other than that designated by law for holding courts. A term may be adjourned from the

kept with the banks, in manner and form as the court directs.

L. 1863, ch. 200, 21.

204. Clerk to report to court of appeals, concerning money. On the first Tuesday of January, and on the first Tuesday of July, in each year, the clerk must transmit to the chief-judge, a statement, verified by his affidavit, of all money, then remaining in court or in his hands, which must specify:

1. The fund, or the title of the cause, in or on account of which each sum of money was paid.

2. The party by whom it was paid, and generally for what purpose.

ard 3. The time of payment, and the amount paid. 4. The bank in which it is deposited.

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205. Amount deposited to be certified by cashler. The statement must be accompanied with certificate of the cashier of each bank, in which a deposit is stated to have been made, to the effect, that the total amount stated to be deposited is actually in the bank, placed to the credit of the clerk, as clerk of the rt of appeals, and not mingled with any other ac

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106. Court may order money to be invested; restrictions as to drawing money from bank.-The court may, by order, direct any portion of the money to be invested in the public debt of the State, or of the United States, or in approved interest-bearing mortgages upon real property. It may in like manner direct any sum of money, or any security, to be transferred or disposed of, as the court thinks proper. The clerk shall not invest any money, except pursuant to such a direction. Money deposited shall not be drawn from the bank, except on check, signed by the clerk, and countersigned by the f-judge, or, in his absence, by an associate judge of ourt.doid verom 1910

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7. Court may appoint person to examine acThe court may also, from time to time, appoint e person to examine the accounts kept by, and

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