Art. VI, § 3

Jurisdiction and Procedure

the papers on which it was granted, and on other affidavits and papers, the justice who granted the original order may properly sit in the General Term in an appeal from the second order. Philips v. Germania Bank, (1887) 107 N. Y. 630, 13 N. E. 923. Prior to Jan. 1, 1870, at which time the above constitutional disqualification became effective, it was not improper for a judge to sit in review upon his own judgments. Real v. People, (1870) 42 N. Y. 270, affirming 55 Barb. 551; Richter v. Poppenhausen, (1870) 42 N. Y. 373, affirming 57 Barb. 309; Pierce v. Delamater, (1847) 1 N. Y. 17, affirming 3 Denio 315; In re Court of Errors, (1830) 6 Wend. 158.

Abolition of distinction between law and equity. The legislature has the power under the constitution to bring the procedure in equity to a conformity with the proceedings in the law courts. There is no restriction on the power of that body to provide for both legal and equitable relief in the same suit. Therefore, the authorization by the Code of Procedure of such a joinder is valid and controlling. Lattin v. McCarty, (1869) 41 N. Y. 107; New York Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357; Phillips v. Gorham, (1858) 17 N. Y. 270; Porter v. International Bridge Co., (1899) 45 App. Div. 416, 60 N. Y. S. 819, affirmed 163 N. Y. 79, 57 N. E. 174. See also Barlow v. Scott, (1861) 24 N. Y. 40; Laub v. Buckmiller, (1858) 17 N. Y. 620. Compare Reubens v. Joel, (1856) 13 N. Y. 488 (dictum per Selden, J.). Accordingly, in an action to recover the possession of land, the plaintiffs may attack a deed under which the defendant claims title, both upon legal grounds and upon such as before the adoption of the Code were of purely equitable cognizance. Phillips v. Gorham, (1858) 17 N. Y. 270. The legislature is, of course, prevented by section 2 of article 1 from prescribing any other than a jury trial in cases in which that mode of trial was used at the period to which that section of the Constitution refers. Phillips v. Gorham, (1858) 17 N. Y. 270. See also Reubens v. Joel, (1856) 13 N. Y. 488. And see Art. 1, § 2. On the other hand, it seems that there is nothing to prevent the legislature from imposing the necessity of a jury trial in equity cases. Phillips v. Gorham, (1858) 17 N. Y. 270. Compare Reubens v. Joel, (1856) 13 N. Y. 488 (dictum per Selden, J.). In Phillips v. Gorham, supra, this was said: "Nor is there any doubt that under the . . . constitution the procedure in equity could have been brought to a conformity with the proceedings in the law courts. The legislature might at any time have changed the subpoena to answer into a writ upon the case, the bill into a declaration, the answer into a plea in bar, and have compelled a trial by jury in all cases. The question is not whether such a change would have been wise, having regard to the great degree of ease and certainty in procedure which had been attained by the experience of many years, and to the difficulty of substituting a new and untried practice, but is only one of power, and upon that question no doubt could have existed.” In Reubens v. Joel, supra, Selden, J., said, obiter: "What are the distinctions between actions at law and suits in equity? The most marked distinction obviously consists in their different modes of relief. In the one, with a few isolated exceptions, relief is invariably administered, and can only be administered, in the form of a pecuniary compensation in damages for the injury received; in the other, the court has a discretionary power to adapt the relief to the circumstances of the case. By what process can these two modes of relief be made identical? It is possible to abolish one or the other, or both, but it certainly is nct possible to abolish the distinction between them. The legislature may, unless prohibited by the constitution, enact that no court shall hereafter have power to grant any relief, except in the form of damages, and thereby abolish all suits in equity; or that all courts shall have power to mould the relief to suit the particular case, and thereby virtually abolish actions at law as a distinct class. To illustrate by a single case; they may provide that where a vendor of land, who has contracted to sell and received the purchase money, refuses to convey, the vendee shall have no remedy but an action for damages, or, on the other hand, that he shall be confined to a suit for a specific

Jurisdiction and Procedure

Art. VI, § 3

performance; but it is clearly beyond the reach of their powers to make these two remedies the same. It is, in my judgment, clear that the legislature has not the constitutional power to reduce all actions to one homogeneous form; because it could only be done by abolishing trial by jury, with its inseparable accompaniment, compensation in damages, which would not only conflict with art. 1, § 2, which preserves trial by jury, but would in effect subvert all jurisdiction at law, as all actions would thereby be rendered equitable; or, by abolishing trial by the court, with its appropriate incident, specific relief, which would destroy all equity jurisdiction and convert every suit into an action at law."

Imposition of ministerial duty on court. The legislature cannot, under its "power to alter and regulate the proceedings in law and equity which it has heretofore exercised," enforce a mere ministerial duty upon a court. Accordingly, section 793 of the Code of Civil Procedure, as amended by chapter 173 of the Laws of 1904, which provides for preferences in trials among civil cases, is unconstitutional in that it attempts to deprive the court of the power to exercise that judicial discretion as to the conduct of the business before it which has always been its prerogative, and thus constitutes an encroachment by the legislative branch of the government of the state upon the judicial branch of the government. Riglander v. Star Co., (1904) 98 App. Div. 101, 90 N. Y. S. 772, affirmed, 181 N. Y. 531, 73 N. E. 1131. In that case the court said: "It seems to me that no one can read the amendatory law, having in mind, as he is bound to do, the previous condition of the law upon the subject, without having the conclusion forced upon him that the legislature intended to deprive the courts of all discretion and to compel them to try these cases at the term for which they are moved, thus depriving the courts of the right to exercise that judicial discretion which has always been their prerogative. I do not think that the legislature can do this. The courts are not the puppets of the legislature. They are an independent branch of the government, as necessary and powerful in their sphere as either of the other great divisions. And while the legislature has the power to alter and regulate the proceedings in law and equity, it can only exercise such power in that respect as it has heretofore exercised; and it has never before attempted to deprive the courts of that judicial discretion which they have been always accustomed to exercise."

II. TESTIMONY CLAUSE.

Meaning and effect generally. The provision of this section that "testimony in equity cases shall be taken in like manner as in cases at law," means that in both suits in equity and actions at law the testimony shall be taken in the manner previously pursued in courts of law. The difference in the two courts as to the manner of taking testimony had previously been that in courts of law the witnesses were produced, sworn and examined before the tribunal which was to decide, while in courts of equity the witnesses were examined before an examiner, and only their written testimony was presented to the tribunal. It was this difference which was abolished by the constitution. Farmers' Nat. Bank v. Houston, (1887) 44 Hun 567. To the same effect, see Phillips v. Gorham, (1858) 17 N. Y. 270; Williamson v. Randolph, (1906) 111 App. Div. 539, 97 N. Y. S. 949, affirmed, 185 N. Y. 603, 78 N. E. 545; Matter of Carey, (1897) 24 App. Div. 531, 49 N. Y. S. 32; Shaffer v. Martin, (1897) 20 App. Div. 304, 46 N. Y. S. 992; Mutual Life Ins. Co. v. Anthony, (1888) 50 Hun 101, 4 N. Y. S. 501. See also Smith v. State, (1915) 214 N. Y. 140, 108 N. E. 214, reversing 161 App. Div. 906, 145 N. Y. S. 1145; Doyle v. Metropolitan El. R. Co., (1893) 136 N. Y. 505, 32 N. E. 1008. However, this did not disturb the exceptional cases of testimony taken on commission, etc., because, in such exceptional cases, written testimony was used in courts of law. Farmers' Nat. Bank

Art. VI, § 3

Jurisdiction and Procedure

the papers on which it was granted, and on other affidavits and papers, the justice who granted the original order may properly sit in the General Term in an appeal from the second order. Philips v. Germania Bank, (1887) 107 N. Y. 630, 13 N. E. 923. Prior to Jan. 1, 1870, at which time the above constitutional disqualification became effective, it was not improper for a judge to sit in review upon his own judgments. Real v. People, (1870) 42 N. Y. 270, affirming 55 Barb. 551; Richter v. Poppenhausen, (1870) 42 N. Y. 373, affirming 57 Barb. 309; Pierce v. Delamater, (1847) 1 N. Y. 17, affirming 3 Denio 315; In re Court of Errors, (1830) 6 Wend. 158.

Abolition of distinction between law and equity.— The legislature has the power under the constitution to bring the procedure in equity to a conformity with the proceedings in the law courts. There is no restriction on the power of that body to provide for both legal and equitable relief in the same suit. Therefore, the authorization by the Code of Procedure of such a joinder is valid and controlling. Lattin v. McCarty, (1869) 41 N. Y. 107; New York Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357; Phillips v. Gorham, (1858) 17 N. Y. 270; Porter v. International Bridge Co., (1899) 45 App. Div. 416, 60 N. Y. S. 819, affirmed 163 N. Y. 79, 57 N. E. 174. See also Barlow v. Scott, (1861) 24 N. Y. 40; Laub v. Buckmiller, (1858) 17 N. Y. 620. Compare Reubens v. Joel, (1856) 13 N. Y. 488 (dictum per Selden, J.). Accordingly, in an action to recover the possession of land, the plaintiffs may attack a deed under which the defendant claims title, both upon legal grounds and upon such as before the adoption of the Code were of purely equitable cognizance. Phillips v. Gorham, (1858) 17 N. Y. 270. The legislature is, of course, prevented by section 2 of article 1 from prescribing any other than a jury trial in cases in which that mode of trial was used at the period to which that section of the Constitution refers. Phillips v. Gorham, (1858) 17 N. Y. 270. See also Reubens v. Joel, (1856) 13 N. Y. 488. And see Art. 1, § 2. On the other hand, it seems that there is nothing to prevent the legislature from imposing the necessity of a jury trial in equity cases. Phillips v. Gorham, (1858) 17 N. Y. 270. Compare Reubens v. Joel, (1856) 13 N. Y. 488 (dictum per Selden, J.). In Phillips v. Gorham, supra, this was said: "Nor is there any doubt that under the . . . constitution the procedure in equity could have been brought to a conformity with the proceedings in the law courts. The legislature might at any time have changed the subpœna to answer into a writ upon the case, the bill into a declaration, the answer into a plea in bar, and have compelled a trial by jury in all cases. The question is not whether such a change would have been wise, having regard to the great degree of ease and certainty in procedure which had been attained by the experience of many years, and to the difficulty of substituting a new and untried practice, but is only one of power, and upon that question no doubt could have existed.” In Reubens v. Joel, supra, Selden, J., said, obiter: "What are the distinctions between actions at law and suits in equity? The most marked distinction obviously consists in their different modes of relief. In the one, with a few isolated exceptions, relief is invariably administered, and can only be administered, in the form of a pecuniary compensation in damages for the injury received; in the other, the court has a discretionary power to adapt the relief to the circumstances of the case. By what process can these two modes of relief be made identical? It is possible to abolish one or the other, or both, but it certainly is not possible to abolish the distinction between them. The legislature may, unless prohibited by the constitution, enact that no court shall hereafter have power to grant any relief, except in the form of damages, and thereby abolish all suits in equity; or that all courts shall have power to mould the relief to suit the particular case, and thereby virtually abolish actions at law as a distinct class. To illustrate by a single case; they may provide that where a vendor of land, who has contracted to sell and received the purchase money, refuses to convey, the vendee shall have no remedy but an action for damages, or, on the other hand, that he shall be confined to a suit for a specific

Jurisdiction and Procedure

Art. VI, § 3

performance; but it is clearly beyond the reach of their powers to make these two remedies the same. It is, in my judgment, clear that the legislature has not the constitutional power to reduce all actions to one homogeneous form; because it could only be done by abolishing trial by jury, with its inseparable accompaniment, compensation in damages, which would not only conflict with art. 1, § 2, which preserves trial by jury, but would in effect subvert all jurisdiction at law, as all actions would thereby be rendered equitable; or, by abolishing trial by the court, with its appropriate incident, specific relief, which would destroy all equity jurisdiction and convert every suit into an action at law."

Imposition of ministerial duty on court. The legislature cannot, under its "power to alter and regulate the proceedings in law and equity which it has heretofore exercised," enforce a mere ministerial duty upon a court. Accordingly, section 793 of the Code of Civil Procedure, as amended by chapter 173 of the Laws of 1904, which provides for preferences in trials among civil cases, is unconstitutional in that it attempts to deprive the court of the power to exercise that judicial discretion as to the conduct of the business before it which has always been its prerogative, and thus constitutes an encroachment by the legislative branch of the government of the state upon the judicial branch of the government. Riglander v. Star Co., (1904) 98 App. Div. 101, 90 N. Y. S. 772, affirmed, 181 N. Y. 531, 73 N. E. 1131. In that case the court said: "It seems to me that no one can read the amendatory law, having in mind, as he is bound to do, the previous condition of the law upon the subject, without having the conclusion forced upon him that the legislature intended to deprive the courts of all discretion and to compel them to try these cases at the term for which they are moved, thus depriving the courts of the right to exercise that judicial discretion which has always been their prerogative. I do not think that the legislature can do this. The courts are not the puppets of the legislature. They are an independent branch of the government, as necessary and powerful in their sphere as either of the other great divisions. And while the legislature has the power to alter and regulate the proceedings in law and equity, it can only exercise such power in that respect as it has heretofore exercised; and it has never before attempted to deprive the courts of that judicial discretion which they have been always accustomed to exercise."

II. TESTIMONY CLAUSE.

66

Meaning and effect generally. The provision of this section that testimony in equity cases shall be taken in like manner as in cases at law," means that in both suits in equity and actions at law the testimony shall be taken in the manner previously pursued in courts of law. The difference in the two courts as to the manner of taking testimony had previously been that in courts of law the witnesses were produced, sworn and examined before the tribunal which was to decide, while in courts of equity the witnesses were examined before an examiner, and only their written testimony was presented to the tribunal. It was this difference which was abolished by the constitution. Farmers' Nat. Bank v. Houston, (1887) 44 Hun 567. To the same effect, see Phillips v. Gorham, (1858) 17 N. Y. 270; Williamson v. Randolph, (1906) 111 App. Div. 539, 97 N. Y. S. 949, affirmed, 185 N. Y. 603, 78 N. E. 545; Matter of Carey, (1897) 24 App. Div. 531, 49 N. Y. S. 32; Shaffer v. Martin, (1897) 20 App. Div. 304, 46 N. Y. S. 992; Mutual Life Ins. Co. v. Anthony, (1888) 50 Hun 101, 4 N. Y. S. 501. See also Smith v. State, (1915) 214 N. Y. 140, 108 N. E. 214, reversing 161 App. Div. 906, 145 N. Y. S. 1145; Doyle v. Metropolitan El. R. Co., (1893) 136 N. Y. 505, 32 N. E. 1008. However, this did not disturb the exceptional cases of testimony taken on commission, etc., because, in such exceptional cases, written testimony was used in courts of law. Farmers' Nat. Bank

of twelve months or more. And this succession of appointment and resignation, and resignation and appointment, may be kept up as long as the judicial and executive servants of the people may be willing to act in it. Thus would the electors be permanently defeated in the exercise of their constitutional privilege of choice. It needs not to name all the evils which would thus result. It is sufficient to say that it would work an entire perversion of the spirit and general intent of the judiciary article."

History of "three months" clause.- Prior to the adoption in 1869 of the "three months" clauses now contained in this section and in section 8 of this article, the constitution provided as follows: "In case the office of any judge of the court of appeals, or justice of the supreme court, shall become vacant before the expiration of the regular term for which he was elected, the vacancy may be filled, by appointment by the governor, until it shall be supplied at the next general election of judges, when it shall be filled by election for the residue of the unexpired term." Thus, under that provision, when the office of a justice became vacant before the expiration of his term of office, the vacancy was to be supplied by the electors at the next general election of judges, even though the vacancy should occur at so late a day that no notice could be given by the secretary of state or other officer pursuant to the statute, that a justice was to be elected at such election to fill the vacancy. People v. Cowles, (1856) 13 N. Y. 350. See also People v. Potter, (1872) 47 N. Y. 375; Markland v. Scully, (1911) 146 App. Div. 350, 131 N. Y. S. 364. To illustrate: Where an incumbent, whose term of office would not have expired for several years, died on the 23d of October, and the electors of the district at the general election of judges on the ensuing 6th of November elected a person to fill the vacancy, the election was valid, notwithstanding no notice was given that a justice was to be elected to fill the vacancy. People v. Cowles, (1856) 13 N. Y. 350. Accordingly, under this condition of facts and under the holding in People v. Cowles, supra, the Constitutional Convention of 1867 saw "the possible danger that a vacancy in a judicial office might be filled by the votes of a comparatively few electors, by reason of the fact that the existence of a vacancy was not generally known," and recommended "the three months' rule, which was included in the judiciary article adopted in 1869 and continued in the constitution of 1894." Markland v. Scully, (1911) 146 App. Div. 350, 131 N. Y. S. 364. See also People v. Potter, (1872) 47 N. Y. 375. In the case last cited this was said: "It was a matter of political and judicial history that, under the late system, a vacancy had occurred in judicial office on the eve of an election, and that without the formalities of notice from the Secretary of State, or from the sheriff of the county, or from any other officer prescribed by law, one had been chosen to fill the

same.

(People v. Cowles, 13 N. Y. 350; Laws of 1847, Vol. I, p. 263, ch. 240, 8 7.) And it was perceived as a possibility, that unknown to the mass of the electors, an inconsiderable number of them might exercise the right and perform the duty to which all should be called, and a few votes cast without general notice might choose an incumbent for the vacant office. He might be one unfit for the place, unworthy of the confidence of the people, and unable to secure their suffrage. There was this possible danger to be forecast against. And to that end, a novel and peculiar provision was adopted. It was that, though as a general proposition the vacancy should be filled at a general election and for a full term, yet as an exception therefrom, it should not be filled by election at a general election happening less than three months after the vacancy should occur, so that full notice should be had of the occasion. But as it might, in such case, chance that some time would elapse before the vacancy could be supplied by election, to the public inconvenience, this further contingency was met by this other still more subordinate provision, that, until it should be so filled, the governor was empowered, with or without the advice and consent of the senate, as it should or should not be in session, to fill it by appointment.”