mayor in these cases acts as a judge, or magistrate, but the judicial function is incident to the office of mayor. He does not hold the office of judge, and if eligible to the office of mayor, although seventy years of age, he may, we think, discharge the duties connected with that office after that time, including the holding of the mayor's court, without a violation of the constitution." Justice of peace. This age limitation does not apply to a justice of the peace. Accordingly, a justice of the peace may be elected to, and may hold that office, after the expiration of the year in which he reaches the age of seventy. People v. Mann, (1885) 97 N. Y. 530, 49 Am. Rep. 556, reversing 32 Hun 440. In that case this was said: "The provision in the 13th [12th] section, that no person shall hold the office of justice or judge of any court,' is to be interpreted in the light of the antecedent and subsequent sections, and so interpreting them, justices of the peace are not, we think, included. There are other considerations which tend to support this conclusion. There was no apparent reason or policy for subjecting justices of the peace to the limitation of age applicable to the general class of judges. Their terms are short and are left by the amended judiciary article as they were fixed by the constitution of 1846. It does not appear that any public inconvenience had resulted from the absence of a limitation of age applicable to these officers. Their number, four in each town, afford a reasonable guaranty that the public service will not suffer by the disability of incumbents arising from age, and the easy means provided for their removal would subject the public, at most, to only a temporary inconvenience."

Surrogate. The provision of this section declaring that "no person shall hold the office of judge or justice of any court longer than until and including the last day of December next after he shall be seventy years of age," does not apply to a person holding the office of surrogate. People v. Carr, (1885) 100 N. Y. 236, 3 N. E. 82, 53 Am. Rep. 161. Compare People v. Mann, (1885) 97 N. Y. 530, 49 Am. Rep. 556 (dictum).

County judge. The age disqualification contained in this section does apply to a county judge. People v. Brundage, (1879) 78 N. Y. 403; People v. Gardner, (1871) 45 N. Y. 812, affirming 59 Barb. 198, 5 Lans. 1. Where, therefore, a county judge who was elected in 1873, and entered upon the duties of his office Jan. 1, 1874, arrived at seventy years of age in November, 1878, his term expired on the last day of December, 1878; and a person who was elected county judge at the general election in 1878 was entitled to the office. People v. Brundage, (1879) 78 N. Y. 403. This limitation, however, did not apply to county judges in office at the time of its adoption, as the express language of section 14 of this article, that the county judges now in office shall hold their offices until the expiration of their respective terms," was controlling when construed in connection with this provision. People v. Gardner, (1871) 45 N. Y. 812, affirming 59 Barb. 198, 5 Lans. 1.

13. Impeachment.

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The Assembly shall have the power of impeachment, by a vote of a majority of all the members elected. The court for the trial of impeachments shall be composed of the President of the Senate, the Senators, or the major part of them, and the Judges of the Court of Appeals, or the major part of them. On the trial of an impeachment against the Governor or Lieutenant-Governor, the Lieutenant-Governor shall not act as a member of the court. No judicial officer shall exercise his office, after articles of impeachment against him shall have been preferred to the Senate, until he

shall have been acquitted. Before the trial of an impeachment the members of the court shall take an oath or affirmation truly and impartially to try the impeachment according to the evidence, and no person shall be convicted without the concurrence of twothirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, or removal from office and disqualification to hold and enjoy any office of honor, trust or profit under this State; but the party impeached shall be liable to indictment and punishment according to law.

Const. 1777, Art. XXXIII; amended, Const. 1821, Art. V, § 2; amended, Const. 1846, Art. VI, § 1; amended, Judiciary Article, 1869, Art. VI, § 1; continued without change in Const. 1894, Art. VI, § 13.

14. County courts.

Judges; number, election, term.

Jurisdiction of county courts.

Courts of sessions abolished except in New York county.
County judges; powers and duties, salary.

May hold court in other counties.

The existing County Courts are continued, and the Judges thereof now in office shall hold their offices until the expiration of their respective terms. In the county of Kings there shall be four County Judges. The number of County Judges in any county may also be increased, from time to time, by the Legislature, to such number that the total number of County Judges in any one county shall not exceed one for every two hundred thousand, or major fraction thereof, of the population of such county. The additional County Judges in the county of Kings shall be chosen at the general election held in the first odd-numbered year after the adoption of this amendment. The additional County Judges whose offices may be created by the Legislature shall be chosen at the general election held in the first odd-numbered year after the creation of such office. All County Judges, including successors to existing Judges, shall be chosen by the electors of the counties for the term of six years from and including the first day of January following their election. County Courts shall have the powers and jurisdiction they now possess, and also original jurisdiction in actions for the recovery of money only, where the defendants reside in the county, and in which the complaint demands judgment for a sum not exceeding two thousand

dollars. The Legislature may hereafter enlarge or restrict the jurisdiction of the County Courts, provided, however, that their jurisdiction shall not be so extended as to authorize an action therein for the recovery of money only, in which the sum demanded exceeds two thousand dollars, or in which any person not a resident of the county is a defendant. Courts of Sessions, except in the county of New York, are abolished from and after the last day of December, eighteen hundred and ninety-five. All the jurisdiction of the Court of Sessions in each county, except the county of New York, shall thereupon be vested in the County Court thereof, and all actions and proceedings then pending in such Courts of Sessions shall be transferred to the said County Courts for hearing and determination. Every County Judge shall perform such duties as they may be required by law. His salary shall be established by law, payable out of the county treasury. A County Judge of any county may hold County Courts in any other county when requested by the judge of such other county.

Const. 1846, Art. VI, § 14; amended, Judiciary Article, 1869, Art. VI, § 15; amended, Const. 1894, Art. VI, § 14; amended in 1913. See also Const. 1777, Art. XXIV, and Const. 1821, Art. V, § 6.

Limitation on jurisdiction generally.- The County Court is confessedly a court of limited jurisdiction. Gilbert v. York, (1888) 111 N. Y. 544, 19 N. E. 268, affirming 41 Hun 594, 8 N. Y. St. Rep. 250; Curran v. Arp, (1910) 141 App. Div. 38, 125 N. Y. S. 758; Heffron v. Jennings, (1901) 66 App. Div. 443, 73 N. Y. S. 410. See also Frees v. Ford, (1852) 6 N. Y. 176. To give it jurisdiction under this section of a case or action for the recovery of money only, two facts must exist and be made to appear on the face of the complaint. First, it must appear that the amount demanded does not exceed the limit fixed by this section of the Constitution. Heffron v. Jennings, (1901) 66 App. Div. 443, 73 N. Y. S. 410. See also Ralli v. Pearsall, (1902) 69 App. Div. 254, 74 N. Y. S. 620. Second, it must be shown that all of the defendants are residents of the county in which the case or action is begun. Gilbert v. York, (1888) 111 N. Y. 544, 19 N. E. 268, affirming 41 Hun 594, 8 N. Y. St. Rep. 250; Kortwellyezsy v. Manhattan Cooperage Co., (1914) 162 App. Div. 285, 147 N. Y. S. 586; Curran v. Arp, (1910) 141 App. Div. 38, 125 N. Y. S. 758; People v. Bailey, (1909) 136 App. Div. 130, 120 N. Y. S. 618; Henneke v. Schmidt, (1907) 121 App. Div. 517, 106 N. Y. S. 138. See also Frees v. Ford, (1852) 6 N. Y. 176; Dake v. Miller, (1878) 15 Hun 356. Compare Weidman v. Sibley, (1897) 16 App. Div. 616, 44 N. Y. S. 1057.

Money limitation. It follows necessarily from the requirements of this section that a County Court has no jurisdiction to entertain a case which is not within the money limitation herein fixed. Heffron v. Jennings, (1901) 66 App. Div. 443, 73 N. Y. S. 410. However, where the summons is served in advance of a complaint which demands an amount in excess of the prescribed limitation, it seems that the court acquires sufficient jurisdiction to permit an amendment reducing the demand. Van Clief v. Van Vechten, (1892) 130 N. Y. 571, 29 N. E. 1017; Dwyer v. Rathbone, etc., Co., (1888) 49 Hun 609, mem., 2 N. Y. S. 170. See also Heffron v. Jennings, (1901) 66 Ap. Div. 443, 73 N. Y. S. 410; McIntyre v. Carriere, (1879) 17 Hun 64.

But this is not true where the complaint and summons are served simultaneously, as a court can acquire no jurisdiction by amendment of a suit of which it had no jurisdiction before amendment. Heffron v. Jennings, (1901) 66 App. Div. 443, 73 N. Y. S. 410; McIntyre v. Carriere, (1879) 17 Hun 64. See also Van Clief v. Van Vechten, (1892) 130 N. Y. 571, 29 N. E. 1017.

Nonresident defendant clause. Clearly, under this section, the parties cannot by consent confer jurisdiction on a County Court to entertain an action to recover money only against a defendant who is not a resident of the county. People v. Bailey, (1909) 136 App. Div. 130, 120 N. Y. S. 618; Dake v. Miller, (1878) 15 Hun 356. However, objections to the defect in the failure to allege the residence of the defendant must be taken by answer, or it is waived, and the court may take jurisdiction if, in fact, the defendant is a resident. People v. Bailey, (1909) 136 App. Div. 130, 120 N. Y. S. 618. See also Ross v. Konor, (1888) 49 Hun 610, mem., 2 N. Y. S. 169. So, when the defendant is served with a summons in the county and is, in fact, a resident thereof, it seems that the court obtains jurisdiction to allow an amendment curing the failure to allege residence. Henneke v. Schmidt, (1907) 121 App. Div. 516, 106 N. Y. S. 138. The objection that the court has not jurisdiction of the person of the defendant must be made promptly, as it would be oppressive to permit him to lie by until costs had largely accumulated before objecting that jurisdiction of his person had not been obtained. "Residence depends not unfrequently on intention.

if not impossible, for any third person to ascertain.

This it is very difficult,
Hence it is that defend-

ants have been required to raise the objection to the jurisdiction of the courts over their persons at the first opportunity, and that appearing in the cause and pleading to the merits have been held to be waivers of the objection to the jurisdiction." Dake v. Miller, (1878) 15 Hun 356.

Residence of corporation.- The Code of Civil Procedure (§ 341) provides that for the purpose of determining the jurisdiction of a County Court, a domestic corporation whose principal place of business is established, by or pursuant to a statute or by its articles of association, or is actually located within the county, is deemed a resident of the county. Heenan v. New York, etc., R. Co., (1885) 34 Hun 602; Maisch v. New York, (1908) 193 N. Y. 460, 86 N. E. 458, affirming 127 App. Div. 424, 111 N. Y. S. 645. Accordingly, by virtue of that statutory provision, a corporation is a nonresident within this section of the constitution, except in the county wherein its principal place of business is established. Thus, the County Court of Albany county has no jurisdiction over an action against a railroad company operating in the county, but having its principal place of business in the city of New York. Heenan v. New York, etc., R. Co., (1885) 34 Hun 602. Likewise, the County Court of Kings county has no jurisdiction of an action against the city of New York, which is a domestic corporation, having its principal place of business within the county of New York. Maisch v. New York, (1908) 193 N. Y. 460, 86 N. E. 458, affirming 127 App. Div. 424, 111 N. Y. S. 645. Power of legislature over jurisdiction.— Subject to the limitation expressly prescribed by this section, the legislature may confer upon the County Courts jurisdiction in any and every class of actions, without regard to the extent or value of the property or rights to be affected thereby. Howard Iron Works v. Buffalo Elevating Co., (1903) 176 N. Y. 1, 68 N. E. 66, reversing 81 App. Div. 386, 81 N. Y. S. 452; Hawley v. Whalen, (1892) 64 Hun 550, 19 N. Y. S. 521. See also Matter of Felts Street, (1897) 18 App. Div. 568, 46 N. Y. S. 43; Buckhout v. Rall, (1882) 28 Hun 484. Thus, where the County Court has been given jurisdiction to entertain an action to foreclose a mortgage, it may render judgment for a deficiency, whatever that amount may be. Hawley v. Whalen, (1892) 64 Hun 550, 19 N. Y. S. 521. See also Howard Iron Works v. Buffalo Elevating Co., (1903) 176 N. Y. 1, 68 N. E. 66, reversing 81 App. Div. 386, 81 N. Y. S. 452. Similarly, "it cannot be doubted constitution to enact that when

that the legislature has power under the

the county court acquires jurisdiction of an action by the service of a proper complaint, the court may entertain any defense which the defendant, sued in that court, may have, even though it be a counterclaim alleged to be more than $2,000." Howard Iron Works v. Buffalo Elevating Co., (1903) 176 N. Y. 1, 68 N. E. 66, reversing 81 App. Div. 386, 81 N. Y. S. 452.

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Matters triable by judge of another county.— This section provides that a county judge of any county may hold county courts in any other county when required by the judge of such other county." Under this clause a county judge can require the judge of another county to act for him only in matters of which County Courts have jurisdiction. Prior to 1871 a county judge empowered to appoint commissioners of drainage could not, when himself interested in the appointment, request the judge of another county to act in his place, since before that date County Courts had no jurisdiction of drainage proceedings. In re Ryers, 72 N. Y. 1, 28 Am. Rep. 88, (1878) affirming 10 Hun 93. So, this clause authorizes a county judge to hold court in another county only to try causes of action pending in that court. Hence, where a county judge filed a certificate of disqualification in which he requested that the county judge of another county hold the County Court of his county for the purpose of hearing and determining a certain suit, which, under the provisions of section 342 of the Code of Civil Procedure, was automatically removed to the Supreme Court upon the filing of the certificate of disqualification, a judgment thereafter entered in the County Court was properly vacated and set aside for want of jurisdiction. Queens-Nassau Mortg. Co. v. Graham, (1913) 157 App. Div. 489, 142 N. Y. S. 589.

Appointment of county judges by governor under article 6, sections 4, 15.— The provision contained in this section that "the additional county judges in the county of Kings shall be chosen at the general election held in the first odd-numbered year after the adoption of this amendment," is not exclusive of the right of appointment conferred on the governor by sections 4 and 15 of this article. "The general rule is that when a law establishing an office takes effect a vacancy in the office at once exists, unless the language of the law imports futurity of selection." Accordingly, where the governor named two judges to fill the vacancies created in Kings county by the provisions of this section, the appointment was valid, and the judges so appointed were de jure county judges of that county. People v. Hylan, (1914) 212 N. Y. 236, 106 N. E. 89, reversing 163 App. Div. 219, 148 N. Y. S. 287.

$ 15. Surrogates' courts.

Surrogates; election, term, powers and duties.
County judge as surrogate.

Separate officer as surrogate.

Age limit of county judges and surrogates.

Vacancies in office of county judge or surrogate.

Compensation of county judges and surrogates.

Powers of surrogates may be conferred on supreme court in certain counties.

The existing Surrogates' Courts are continued, and the Surrogates now in office shall hold their offices until the expiration of their terms. Their successors shall be chosen by the electors of their respective counties, and their terms of office shall be six