Election exactly "three months" after vacancy.- Under the provision of this section that "when a vacancy shall occur otherwise than by expiration of term in the office of justice of the Supreme Court, the same shall be filled for a full term, at the next general election, happening not less than three months after such vacancy occurs," three situations may arise. A vacancy may occur within three months of a general election, and in such case the vacancy cannot be filled at that election. A vacancy may occur exactly three months from a general election or over three months therefrom, and in those cases it may be filled at that election. Accordingly, it follows that a vacancy occurring in the office of justice of the Supreme Court on Aug. 3, 1896, was properly filled at a general election held on Nov. 3, 1896. People v. Goodrich, [1904] 92 App. Div. 445, 87 N. Y. S. 114, affirmed (1904) 180 N. Y. 522, 72 N. E. 1148.

Meaning of "in session."— The words “in session,” as used in this section, "indicate a present acting or being of the senate as a body." Accordingly, when the sittings are terminated by a long adjournment, and the actual meetings of the body are thus interrupted although the session is continued, the senate is not "in session" within the intent and meaning of the constitutional section under review, and an appointment made by the governor during such an adjournment is valid. People v. Fancher, (1872) 50 N. Y. 288. In that case this was said: "The constitution, designed for practical purposes, had respect to realities, and was not dealing with fictions or a constructive condition of things. It had respect to a senate actually and duly convened, and in readiness to act upon the nominations of the governor and the transaction of other business pertaining to that body, and not to a constructive session of a body not actually or potentially existing. It was not intended for a condition of things when as in this case, the senate was not actually convened, and when it was not to convene for months to come, and when a call of the executive would be necessary to enable that body to advise in reference to the nominations. It is not intended to intimate an opinion beyond this case. Although the provision applies to all sessions, the framers of the constitution only had in mind the annual sessions of the senate as a constitutional branch of the legislature which are ordinarily and substantially continuous, are not of long duration, and the terms they have used are more peculiarly applicable to the condition of things during such session. It was not contemplated that an extraordinary occasion would arise when the senate as an independent body would be in session for weeks at a time at intervals and continuing their session by long adjournments during the year. It is very palpable that it is not the intent of the constitution that the senate should be regarded as 'in session' during these long adjournments, or that any such constructive session or sitting should deprive the governor of the right to fill the vacancy or the people of the services of a justice of the Supreme Court."

§ 5. Certain city courts abolished.

The Superior Court of the City of New York, the Court of Common Pleas for the City and County of New York, the Superior Court of Buffalo, and the City Court of Brooklyn, are abolished from and after the first day of January, one thousand eight hundred and ninety-six, and thereupon the seals, records, papers and documents of or belonging to such courts, shall be deposited in the offices of the clerks of the several counties in which said courts now exist; and all actions and proceedings then

pending in such courts shall be transferred to the Supreme Court for hearing and determination. The judges of said courts in office on the first day of January, one thousand eight hundred and ninety-six, shall, for the remainder of the terms for which they were elected or appointed, be Justices of the Supreme Court; but they shall sit only in the counties in which they were elected or appointed. Their salaries shall be paid by the said counties respectively, and shall be the same as the salaries of the other Justices of the Supreme Court residing in the same counties. Their successors shall be elected as Justices of the Supreme Court by the electors of the judicial districts in which they respectively reside.

The jurisdiction now exercised by the several courts hereby abolished shall be vested in the Supreme Court. Appeals from inferior and local courts now heard in the Court of Common Pleas for the City and County of New York and the Superior Court of Buffalo, shall be heard in the Supreme Court in such manner and by such Justice or Justices as the Appellate Divisions in the respective departments which include New York and Buffalo shall direct, unless otherwise provided by the Legislature.

Judiciary Article, 1869, Art. VI, § 12; amended in 1880; amended, Const. 1894, Art. VI, § 5.

Exclusiveness of appellate jurisdiction conferred. The jurisdiction conferred on the Appellate Division by that part of section 2 of this article, which provides that "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 [Court] of Brooklyn, and such additional jurisdiction as may be conferred by the legislature," is exclusive of the appeals expressly provided for by that part of this section which stipulates that "appeals from inferior and local courts now heard in the court of common pleas for the City and County of New York and the Superior Court of Buffalo, shall be heard in the supreme court in such manner and by such justice or justices as the Appellate Divisions in the respective departments which include New York and Buffalo shall direct, unless otherwise provided by the legislature." The provision of this section, just quoted, indicates that the appellate jurisdiction cast directly upon the Appellate Division by section 2 does not include appeals under the provision of this section, but is to be construed as referring to appeals from determinations in the General Terms of the courts respectively mentioned in that section, and determinations, if any, not within the category of appeals from the local and inferior courts" above referred to. Leach v. Auwell, (1912) 154 App. Div. 170, 138 N. Y. S. 975. See also Gersman v. Levy, (1908) 126 App. Div. 83, 110 N. Y. S. 236; Manheim v. Seitz, (1899) 36 App. Div. 352, 55 N. Y. S. 321; Boechat v. Brown, (1896) 9 App. Div. 369, 41 N. Y. S. 467. Accordingly, it seems that 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 in the second department, is not within, and therefore not violative of section 2 of this article of the constitution, but is within the provision of the above action. Leach v. Auwell, (1912) 154 App. Div. 170, 138 N. Y. S. 975. See also Greenwald v. Weir, (1909) 131 App. Div. 568, 116 N. Y. S. 172. And see Art. 6, § 2. In Gersman v. Levy, supra, the court said: "The defendants appeal from orders of the appellate term dismissing their separate appeals from a judgment of the city court, and from an order denying motion for a new trial. The motions to dismiss, of course, originated at the appellate term. We are without jurisdiction to entertain the appeals. Appeals to the Supreme Court from the city court are heard in this department by justices designated for that purpose under the authority of section 5, article 6 of the constitution, the term at which such appeals are heard being known as the appellate term. From that term there is no appeal, except such as is allowed by statute."

Practice upon transfer of case. Apparently, the practice in a case transferred to the Supreme Court from a court abolished under this section was required to conform to that of the Supreme Court. Thus, in an action originally in the Superior Court of the city of New York, upon the abolition of that court the plaintiff, to secure a hearing, was required to comply with Rule 8 of the Appellate Division and file a note of issue with the clerk of Part 3 of the Special Term in the first judicial district at least twenty days before the first Monday of January, 1896. Finelite v. Darian, (1897) 14 App. Div. 125, 43 N. Y. S. 446.

§ 6. Circuit courts and courts of oyer and terminer abolished.

Circuit Courts and Courts of Oyer and Terminer are abolished from and after the last day of December, one thousand eight hundred and ninety-five. All their jurisdiction shall thereupon be vested in the Supreme Court, and all actions and proceedings then pending in such courts shall be transferred to the Supreme Court for hearing and determination. Any Justice of the Supreme Court, except as otherwise provided in this article, may hold court in any county.

Const. 1894, Art. VI, § 6.

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Necessity for order of transfer. This constitutional provision is a self executing mandate and it was not intended that it should be put into operation through any inferior instrumentality." Hence, it authorized, without any order of transfer having been made, the continuation, at a Trial Term of the Supreme Court on the first day of January, 1896, of the trial of an indictment for murder, which had been begun in the Court of Oyer and Terminer. People v. Hoch, (1896) 150 N. Y. 291, 44 N. E. 976.

Assignment of justice of one department to term in another department.— The provision of article 6, section 2, giving the justices of the Appellate Division in each department the power to assign the justices in the departments to hold Special Terms of court therein obviously limits the justices of a department to the assignment of the Supreme Court justices of that department and gives them no jurisdiction in this particular over the justices of other departments. Where, however, the justices of one department have undertaken to assign to duty therein a justice of another department, that assignment should be treated as an invitation, which the justice by virtue of this section is at liberty to accept or decline. People v. Herrmann, (1896) 149 N. Y. 190, 43 N. E. 546.

§ 7. Court of appeals; judges, terms, quorum, etc.

Reporter, clerk, etc.

Expedition of business; designation by governor of supreme court justices to serve as associate judges.

The Court of Appeals is continued. It shall consist of the chief judge and associate judges now in office, who shall hold their offices until the expiration of their respective terms, and their successors, who shall be chosen by the electors of the State. The official terms of the chief judge and associate judges shall be fourteen years from and including the first day of January next after their election. Five members of the court shall form a quorum, and the concurrence of four shall be necessary to a decision. The court shall have power to appoint and to remove its reporter, clerk and attendants. Whenever and as often as a majority of the judges of the Court of Appeals shall certify to the Governor that said court is unable, by reason of the accumulation of causes pending therein, to hear and dispose of the same with reasonable speed, the Governor shall designate not more than four justices of the Supreme Court to serve as associate judges of Court of Appeals. The justices so designated shall be relieved from their duties as justices of the Supreme Court and shall serve as associate judges of the Court of Appeals until the causes undisposed of in said court are reduced to two hundred, when they shall return to the Supreme Court. The Governor may designate justices of the Supreme Court to fill vacancies. No justice shall serve as associate judge of the Court of Appeals except while holding the office of Justice of the Supreme Court, and no more than seven judges shall sit in any case.

Const. 1846, Art. VI, § 2; amended, Judiciary Article, 1869, Art. VI, § 2; amended, Const. 1894, Art. VI, § 7; amended in 1899. See also Judiciary Article, 1869, Art. VI, § 4; amendment of 1872, § 28; amendment of 1888, § 6.

8. Vacancies in court of appeals.

When a vacancy shall occur otherwise than by expiration of term, in the office of Chief or Associate Judge of the Court of Appeals, the same shall be filled, for a full term, at the next general election happening not less than three months after such vacancy occurs; and until the vacancy shall be so filled, the Governor, by and with the advice and consent of the Senate, if the Senate shall be in session or if not in session the Governor, may

fill such vacancy by appointment. If any such appointment of Chief Judge shall be made from among the Associate Judges, a temporary appointment of Associate Judge shall be made in like manner; but in such case the person appointed Chief Judge shall not be deemed to vacate his office of Associate Judge any longer than until the expiration of his appointment as Chief Judge. The powers and jurisdiction of the court shall not be suspended for want of appointment or election, when the number of Judges is sufficient to constitute a quorum. All appointments under this section shall continue until and including the last day of December next after the election at which the vacancy shall be filled.

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Const. 1846, Art. VI, § 13; amended, Judiciary Article, 1869, Art. VI, § 3; amended, Const. 1894, Art. VI, § 8. See also Const. 1821, Art. IV, § 7. Purpose of "three months" rule.- Prior to the adoption in 1869 of the 'three months" limitation on elections now contained in this section and in section 4 of this article, 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 that the justice was to be chosen at the election could be given by the secretary of state or other officer pursuant to the statute. 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. Therefore, as a possibility was perceived, 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 that a few votes cast without general notice might choose an incumbent for the vacant office, this "three months" rule was enacted. People v. Potter, (1872) 47 N. Y. 375. See also Markland v. Scully, (1911) 146 App. Div. 350, 131 N. Y. Š. 364. And see Art. 6, § 4.

§ 9. Jurisdiction of court of appeals.

After the last day of December, one thousand eight hundred and ninety-five, the jurisdiction of the Court of Appeals, except where the judgment is of death, shall be limited to the review of questions of law. No unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the Court of Appeals. Except where the judgment is of death, appeals may be taken, as of right, to said court only from judgments or orders entered upon decisions of the Appellate Division of the Supreme Court, finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance judgment absolute shall be rendered against them. The Appellate Division in any department may, however, allow