the last day of December, eighteen hundred and ninety-five, the Appellate Division shall have the jurisdiction now exercised by the Supreme Court at its general terms and by the general terms of the Court of Common Pleas for the city and county of New York, the Superior Court of the city of New York, the Superior Court of Buffalo and the city of Brooklyn, and such additional jurisdiction as may be conferred by the Legislature. It shall have power to appoint and remove a reporter. The justices of the Appellate Division in each department shall have power to fix the times and places for holding special terms therein, and to assign the justices in the departments to hold such terms; or to make rules therefor.

Const. 1846, Art. VI, § 6; amended, Judiciary Article, 1869, Art. VI, § 7; amended, Const. 1894, Art. VI, § 2; amended in 1899 and in 1905.

I. In general, 409. II. Jurisdiction, 411.

I. IN GENERAL.

Date of effectiveness of section.- Article 115, section 1, provides that the Constitution shall be in force from and after January, 1895. Insomuch as the Appellate Division had no judicial functions under this section until Jan. 1, 1896, however, it could not prior to that date appoint the commissioners provided for in article 3, section 18, to report whether a proposed street railroad should be constructed. Until then, jurisdiction to discharge that function lay in the General Term of the Supreme Court pursuant to the provisions of the amended Constitution of 1846. In re Rapid Transit R. Co., (1895) 147 N. Y. 260, 41 N. E. 575. The fact that the jurisdiction of the Appellate Division as a court was not complete until the 1st day of January, 1896, did not, however, exclude the power of the justices appointed to that court to assemble, after their appointment and before that day, and designate the trial terms and assign justices thereto. People v. Youngs, (1896) 151 N. Y. 210, 45 N. E. 460.

Division of county by department on change in county boundaries.- A clause in article 5, section 3 of the present constitution provides that nothing in that section shall prevent the division at any time of counties and towns or the erection of new towns by the legislature. That clause is given a liberal construction by the court; and though found in a section relating to the formation of assembly districts, it is construed to authorize a change in county boundaries involving the division of a county by a judicial department. People v. Westchester County, (1895) 147 N. Y. 1, 41 N. E. 563, 30 L. R. A. 74. Apparently, the decision of that case overrules the doctrine of Lanning v. Carpenter, (1859) 20 N. Y. 447, affirming 23 Barb. 402, decided before the introduction of the clause mentioned into the constitution, to the effect that the legislature cannot erect a new county in the interval between apportionments, since a county erected at such a time is necessarily divided by senate and judicial districts until a new apportionment of the state is made. See further as to this point, Art. 3, §§ 4, 5; Art. 6, § 1. Effect of division.- Territory taken from a county included within one department and added to a county in another department remains in the first county for judicial purposes until the judicial districts and departments are altered in accordance with the provision of the Constitution. People v. Westchester County, (1895) 147 N. Y. 1, 41 N. E. 563, 30 L. R. A. 74; Zeimer

v. Rafferty, (1897) 18 App. Div. 397, 46 N. Y. S. 345. See further as to this point, Art. 3, §§ 5, 6; Art. 6, § 1.

Status of Appellate Division.- The Appellate Divisions are not courts of record separate from the Supreme Court but are a continuance of the former General Terms and are, as were those courts, a part of the Supreme Court. Waldo v. Schmidt, (1910) 200 N. Y. 199, 93 N. E. 477, reversing 139 App. Div. 589, 124 N. Y. S. 189; Matter of Pye, (1897) 21 App. Div. 266, 47 N. Y. S. 689. "In reality, the Appellate Divisions are a continuance of the former General Terms, exercising the same appellate jurisdiction, but remaining, as did the former court, a part of the Supreme Court of the State. So far as the exercise of jurisdiction is concerned in matters which are brought before it, it possesses the same power and authority as was formerly possessed by the General Terms, and the provisions of law which provide for remitting its records, orders and judgments to inferior tribunals for their action and to carry out its orders and judgments relate to methods of procedure, and are not limitations upon its original jurisdiction. There is nothing in the provisions of the constitution, except the limitations upon the exercise of authority by its members, which assumes, either in terms or by implication, to limit its jurisdiction in respect of which it had formerly been exercised.” Matter of Pye, supra. But “while there is but one Supreme Court in theory and in fact, it is divided into separate parts, which exercise distinct and dissimilar functions. For convenience and brevity these parts are spoken of both colloquially and in the statutes as courts, and such they are in fact, although all included under the generic title of the Supreme Court." Waldo v. Schmidt, supra.

Quorum.- A quorum is the number of the members of a body competent to transact business. The constitution, in providing that four justices shall constitute a quorum, in effect confers on the four the powers with which the Appellate Division is clothed. Wherefore, the unanimous vote of four justices holding an Appellate Division of the Supreme Court is a unanimous vote of that division within the meaning of subdivision 2, section 191 of the Code of Civil Procedure. Harroun v. Brush Electric Light Co., (1897) 152 N. Y. 212, 46 N. E. 291, 38 L. R. A. 615, dismissing appeal 12 App. Div. 126, 42 N. Y. S. 716.

Appointment of extraordinary term of Supreme Court by governor.— The power of the Appellate Division to fix the time and place for holding terms of the Supreme Court is not exclusive. The legislature by virtue of article 3, section 1, may confer on the governor the power of calling extraordinary terms of that court. People v. Neff, (1908) 191 N. Y. 210, 83 N. E. 970, affirming 122 App. Div. 135, 106 N. Y. S. 747; People v. Gillette, (1908) 191 N. Y. 107, 83 N. E. 680; People v. Valentine, (1911) 147 App. Div. 31, 131 N. Y. S. 733; People v. Young, (1897) 18 App. Div. 162, 45 N. Y. S. 772. Assignment by justices of one department of justice of another department. The provision giving the justices of each department the power to assign the justices in the departments to hold special terms of court therein obviously limits the justices of any department to the assignment of the Supreme Court justices of that department and gives them no jurisdiction in this regard over the justices of other departments. "It is not to be presumed that the framers of the constitution intended to invest each Appellate Division with the power to assign justices of the Supreme Court from any part of the State to perform duty in the particular department where it is located. Such a construction would tend to subvert our entire judicial system." Where, however, the justices of the Appellate Division of one department have assigned to duty therein a justice of another department, that assignment should be treated as an invitation which the justice, by virtue of section 6 of this article, may or may not accept. People v. Herr mann, (1896) 149 N. Y. 190, 43 N. E. 546.

Exercise of ordinary functions of justice of Supreme Court by justice of Appellate Division. The power of a justice of the Supreme Court to perform the functions of that office is suspended, except in certain particulars specified in this section, on his designation to the Appellate Division. Williamson v. Randolph, (1905) 111 App. Div. 539, 97 N. Y. S. 949, affirmed 185 N. Y. 603, 78 N. E. 545; Owasco Lake Cemetery v. Teller, (1906) 110 App. Div. 450, 96 N. Y. S. 985; French v. Merrill, (1898) 27 App. Div. 612, 50 N. Y. S. 776; Reynolds v. Etna Life Ins. Co., (1896) 6 App. Div. 254, 39 N. Y. S. 885. See also Morris v. Harburger, (1905) 100 App. Div. 357, 91 N. Y. S. 409. Thus, a justice of the Appellate Division cannot hold a court for the hearing of motions. "Any other interpretation would enable an appellate judge to hold a term for the hearing of motions and to dispose of all business which might come before him, unless the attorney for either party objected to the jurisdiction of the judge or refused to consent to his acting in any case. It was not intended that an attorney might be called upon in open court to consent or decline to consent that a judge might act in any particular motion noticed for a regular term of court." Wherefore, an order of reference made at Special Term by a justice, who, at the time, had been appointed to the Appellate Division, is a nullity. Owasco Lake Cemetery v. Teller, supra. Similarly, a justice of the Appellate Division has no power to receive the verdict of a jury at a Trial Term of the Supreme Court. French v. Merrill, supra. The disqualification of a justice of the Appellate Division dates, too, from the moment of his designation, and eo instanti he is debarred from proceeding even with those matters pending before him. Thus, although a justice of the Supreme Court has announced his decision in a case before he is designated to the Appellate Division, he is thereafter disqualified by this section from acting further and cannot sign and file his decision. Williamson v. Randolph, (1906) 111 App. Div. 539, 97 N. Y. S. 949, affirmed 185 N. Y. 603, 78 N. E. 545; Reynolds v. Ætna Life Ins. Co., (1896) 6 App. Div. 254, 39 N. Y. S. 885. In such a case, a new trial must be allowed on the motion of either party. Williamson v. Randolph, supra. The disability of a justice so designated ceases, however, on the termination of his designation, and he may thereafter decide cases pending before him at the time of his designation if they have not in the meantime met other disposition. Williamson v. Randolph, (1906) 111 App. Div. 539, 97 N. Y. S. 949, affirmed 185 N. Y. 603, 78 N. E. 545; Irving Nat. Bank v. Moynihan, (1903) 78 App. Div. 141, 79 N. Y. S. 528. Thus, a justice of the Supreme Court, who is temporarily designated to serve on the Appellate Division before he has decided a case tried before him at Special Term, may decide the case after the temporary designation is revoked. Irving Nat. Bank v. Moynihan, supra.

Waiver of disqualification. The theory of the provision prohibiting justices of the Appellate Division from exercising the function of a justice of the Supreme Court " was to save their time for appellate work by preventing them from holding any court other than that to which they are specially assigned." People v. Hall, (1901) 169 N. Y. 184, 62 N. E. 170. In accordance, therefore, with the general rule that constitutional provisions rooted in public policy or morals cannot be waived, it follows that parties to an action cannot by mutual consent confer jurisdiction thereof on a justice of the Appellate Division if an exercise by him of that jurisdiction would be in violation of this provision. Owasco Lake Cemetery v. Teller, (1906) 110 App. Div. 450, 96 N. Y. S. 985; French v. Merrill, (1898) 27 App. Div. 612, 50 N. Y. S. 776. Thus, the parties to a proceeding cannot by mutual consent confer on a justice of the Appellate Division jurisdiction to make an order of reference at Special Term. Owasco Lake Cemetery v. Teller, supra. Anà

a justice of the Appellate Division has no power, even by consent of counsel, to receive the verdict of a jury at a Trial Term of the Supreme Court. French v. Seamans, supra.

Exercise of functions of justice out of court.- By the terms of this section justices of the Appellate Division are vested with all the powers which an unassigned justice of the Supreme Court can exercise out of court. They have the same powers out of court that they had before their designation. Thus, an act (ch. 378, Laws 1896) providing for the appointment of a special commissioner of jurors by justices of the Appellate Division is not in conflict with this section, inasmuch as that power is exercised out of court and could have been conferred on an ordinary justice of the Supreme Court. People v. Hall, (1901) 169 N. Y. 184, 62 N. E. 170.

Jurisdiction of former General Term of Supreme Court.- The Appellate Division has jurisdiction to make any order, judgment, or decree, which could have been properly made by the Supreme Court at General Term. Judson v. Central Vt. R. Co., (1899) 158 N. Y. 597, 53 N. E. 514, reversing 91 Hun 1, 36 N. Y. S. 83; Hopkins v. Clark, (1896) 149 N. Y. 329, 43 N. E. 861. Thus, the Appellate Division of the Supreme Court has jurisdiction so to amend, in accordance with the facts, an order of reversal made by the late General Term of that court, as to render the decision of the General Term reviewable by the Court of Appeals, the power to make such orders having formerly been exercised by the General Term. Judson v. Central Vt. R. Co., (1899) 158 N. Y. 597, 53 N. E. 514, reversing 91 Hun 1, 36 N. Y. S. 83. And the Appellate Division has jurisdiction to grant a motion for a reargument and to hear a roargument of an appeal decided by the General Term of the late Court of Common Pleas for the city and county of New York. Hopkins v. Clark, supra. In like manner the Appellate Division has jurisdiction to hear and determine in the first instance any motion, contested or ex parte, that a Special Term may determine. Thus, the Appellate Division has jurisdiction, either upon motion or in a summary special proceeding, to determine controversies arising out of the professional relations of attorneys and clients and upon what terms attorneys shall be changed in pending actions. Barkley v. New York Cent., etc., Co., (1899) 42 App. Div. 597, 59 N. Y. S. 742. The Appellate Division, too, has the same jurisdiction as the Supreme Court of habeas corpus proceeding; and its jurisdiction in that respect may not be limited by the legislature. People v. Frost, (1909) 133 App. Div. 179, 117 N. Y. S. 524. And the Appellate Division may properly review the determination of a judge who grants an order for examination of a party before trial. Fiske v. Smith, (1896) 9 App. Div. 208, 41 N. Y. S. 176.

Jurisdiction of General Terms of local courts mentioned.— The provisions of this section transferring to the Appellate Division the jurisdiction formerly exercised by the General Terms of certain local courts, therein mentioned, should not be interpreted as vesting the Appellate Division generally with the jurisdiction exercised by each of those courts. On the contrary, it should be construed as transferring the jurisdiction of each particular court to that department of the Appellate Division only which embraces the territory formerly within the territorial jurisdiction of such court. Thus, section 310 of the Municipal Court Act of the city of New York, empowering the Appellate Division of the second department to authorize appeals from the Municipal Court to be held before justices designated by it and to be known as the Appellate Term of the second department, is not in violation of the stipulation that the Appellate Division shall have the jurisdiction exercised by the General Term of the Court of Common Pleas for the city and county of New York. The Municipal Court, it is true, is a continuation of the old District Courts and appeals formerly lay therefrom direct to the General Term of the Court of Common Pleas. It cannot be argued from those circumstances, however, that appeals now lies direct from the Municipal Court to the Appellate Division of the second department, the Court of Common Pleas

Jurisdiction and Procedure

Art. VI, § 3

never having had jurisdiction of the territory embraced in that department. Leach v. Auwell, (1912) 154 App. Div. 170, 138 N. Y. S. 975. See further as to this point Art. 6, § 5.

Additional jurisdiction.- Under the provision allowing the grant of additional jurisdiction to the Appellate Division, it was competent for the legislature, in chapter 380, Laws of 1812 (amending § 131, Code of Civil Procedure), to empower that court to review, reverse or modify the findings of fact made by a trial court in cases tried without jury and to enter such final judgment as in its opinion the trial court should have rendered, the additional jurisdiction which the legislature may confer not being confined to authority to affirm or reverse. Bonnette v. Molloy, 209 N. Y. 167, 102 N. E. 559, affirming 153 App. Div. 73, 138 N. Y. S. 67. Similarly, section 1317 of the Code of Civil Procedure (as amended by the Act of 1912), authorizing the Appellate Division on the appeal of a case that has been tried by jury to enter final judgment on any motion made during the original trial to dismiss the case or to direct a verdict, is a valid exercise by the legislature of its power to grant additional jurisdiction and is no infraction of the right to jury trial conserved by article 1, § 2. Peterson v. Ocean Electric R. Co., (1914) 161 App. Div. 720, 146 N. Y. S. 604.

§ 3. Judge not to review own decision on appeal.

Testimony in equity cases.

Power of legislature over jurisdiction and proceedings in actions.

No Judge or Justice shall sit in the Appellate Division or in the Court of Appeals in review of a decision made by him or by any court of which he was at the time a sitting member. The testimony in equity cases shall be taken in like manner as in cases at law; and, except as herein otherwise provided, the Legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it has heretofore exercised.

Const. 1846, Art. VI, § 10; amended, Judiciary Article, 1869, Art. VI, § 8; amended, Const. 1894, Art. VI, § 3.

I. In general, 413.

il. Testimony clause, 415.

I. IN GENERAL.

Review by justice of his decision. This section forbids a judge or justice to "sit in the Appellate Division or in the Court of Appeals in review of a decision made by him or by any court of which he was at the time a sitting member." Accordingly, an order made by a General Term of the Supreme Court, reviewing and passing upon an order made at a Special Term by one of the justices who sat in the review must be reversed, irrespective of whether the determination was right or wrong. Duryea v. Traphagen, (1881) 84 N. Y. 652; Van Arsdale v. King, (1897) 152 N. Y. 69, 46 N. E. 179, reversing 87 Hun 617 mem., 33 N. Y. S. 858; Pistor v. Hatfield, (1871) 46 N. Y. 249. See also Real v. People, 42 N. Y. 270; 42 N. Y. 373, affirming 57 Barb. 309. Supreme Court makes an order which is

Richter v. Poppenhausen, (1870) However, where a justice of the later vacated by another judge on