The legislature, it is true, is forbidden by article 6, section 14, to confer jurisdiction on the county courts to entertain actions for the recovery of money only in which a nonresident of the county is a defendant, but the Municipal Court may nevertheless determine cases to which a foreign corporation having an office in the city of New York is a party inasmuch as such jurisdiction had been exercised by the district courts, of which the Municipal Court is a continuation, long prior to the adoption of this provision. Worthington v. London Guarantee, etc., Co., supra. Similarly, since the City Court of New York was vested prior to the adoption of this section with jurisdiction to determine actions for the recovery of money irrespective of the amount involved, that court may now entertain cases for the recovery of money wherein a sum in excess of $2,000 is demanded, although such jurisdiction is specifically prohibited county courts by section 14 of this article. Seeley v. Osborne, (1914) 161 App. Div. 844, 147 N. Y. S. 116; Lewkowicz v. Queen Aeroplane Co., 154 App. Div. 142, 138 N. Y. S. 983, affirming (1913) 207 N. Y. 290, 100 N. E. 796. See also Siegel v. Corvan Co., (1913) 157 App. Div. 423, 142 N. Y. S. 267. The circumstance that an inferior court prior to the adoption of this section possessed jurisdiction in excess of that allowed a county court, does not, however, authorize the legislature to confer on that court other jurisdiction in excess of that of county courts. The jurisdiction of such a court in excess of that allowed a county court, cannot be enlarged beyond its limits as it existed at the time of the adoption of this section. Lewkowicz v. Queen Aeroplane Co., (1913) 207 N. Y. 290, 100 N. E. 796, affirming 154 App. Div. 142, 138 N. Y. S. 983; Siegel v. Corvan Co., (1913) 157 App. Div. 423, 142 N. Y. S. 267. See also Seeley v. Osborne, (1914) 161 App. Div. 844, 147 N. Y. S. 116. Thus, section 319a of the Code of Civil Procedure allowing the transfer of actions for the recovery of sums of money exceeding two thousand dollars from the City Court of New York to the Supreme Court and providing that the Supreme Court shall proceed after the transfer just as if it had entertained the action in the first instance, does not entitle the plaintiff in a negligence action who had previously obtained a verdict in said court exceeding two thousand dollars to retain and enforce that verdict merely by transferring the action to the Supreme Court. The City Court, as has been noticed above, has, by virtue of statutory provisions enacted before the adoption of this section, jurisdiction of actions for the recovery of money irrespective of the amount demanded. But it could not render judgment for an amount in excess of two thousand dollars; and any grant of power to render judgment in excess of that sum would be in excess of the jurisdiction allowed the county courts. Accordingly, the instant provision of the Code would be unconstitutional if construed to authorize the Supreme Court to enter judgment in an action for recovery of money only on a verdict returned in the City Court for a sum in excess of two thousand dollars. Were such a judgment allowed, the City Court could accomplish indirectly what it could not effect directly without contravening the mandate of the constitution. Siegel v. Corvan Co., (1913) 157 App. Div. 423, 142 N. Y. S. 267.

19. Clerks of courts.

Clerks of the several counties shall be clerks of the Supreme Court, with such powers and duties as shall be prescribed by law. The Justices of the Appellate Division in each department shall have power to appoint and to remove a clerk, who shall keep his office at a place to be designated by said Justices. The Clerk of

Art. VI, § 20

Limitations Incident to Judicial Office

the Court of Appeals shall keep his office at the seat of government. The Clerk of the Court of Appeals and the Clerks of the Appellate Division shall receive compensation to be established by law and paid out of the public treasury.

Const. 1821, Art. IV, § 9; amended, Const. 1846, Art. VI, § 19; amended, Judiciary Article, 1869, Art. VI, § 20; amended, Const. 1894, Art. VI, § 19.

§ 20. Certain judicial officers not to receive fees.

What judges not to act as attorneys or referees.

What judges must be attorneys.

No judicial officer, except Justices of the Peace, shall receive to his own use any fees or perquisites of office; nor shall any Judge of the Court of Appeals, or Justice of the Supreme Court, or any County Judge or Surrogate hereafter elected in a county having a population exceeding one hundred and twenty thousand, practice as an attorney or counselor in any court of record in this State, or act as referee. The Legislature may impose a similar prohibition upon County Judges and Surrogates in other counties. No one shall be eligible to the office of Judge of the Court of Appeals, Justice of the Supreme Court, or, except in the county of Hamilton, to the office of County Judge or Surrogate, who is not an attorney and counselor of this State.

Const. 1846, Art. VI, § 20; amended, Judiciary Article, 1869, Art. VI, § 21; amended, Const. 1894, Art. VI, § 20.

Right of justice of peace to fees.- The provision of this section that no judicial officer, except a justice of the peace, shall receive to his own use any fees or perquisites of office, not only recognizes the fact that justices of the peace derive their compensation from fees, but also expressly permits them to receive fees for their services. This permission the legislature can neither abridge nor revoke. People v. Howland, (1897) 17 App. Div. 165, 45 N. Y. S. 347, affirmed, (1898) 155 N. Y. 270, 49 N. E. 775, 41 L. R. A. S3S. And see Art. 6, § 7.

Applicability to officers not mentioned of prohibition against practice of law or service as referee.- Referring to the provisions of this section prohibiting certain enumerated judicial officers from practising as attorneys or counselors in any court of record and from acting as referees, the Court of Appeals has said: "The prohibition is simple and direct, contained in a single paragraph, the terms of which are apposite, conveying a distinct and definite idea, and if they are extended it can only be done by conjecture as to the possible intent of the framers of the clause, and upon a theory as to some policy supposed to be shadowed forth. The effect of the prohibition cannot be enlarged by conjecture or implication. If it should be attempted to include judicial officers other than those named, for the reason that they are within the spirit and policy of the prohibition, it would be difficult to draw the line and say which should be included and which excluded, and the interpretation and operation of the constitution would depend much on judicial discretion." Settle v. Van Evrea, (1872) 49 N. Y. 280. See also People v. Carr, (1885) 100 N. Y. 236, 3 N. E. 82, 53 Am. Rep. 161. Thus, this section does not prohibit a "commissioner of appeals" from acting as

Publication of Statutes and Decisions

Art. VI, § 21

a referee, such commissioner not being a member of the Court of Appeals. "It is not enough that a commissioner of appeals exercises the same functions as a judge of the court of appeals, to the extent of the jurisdiction conferred; he is not an incumbent of the office created by the constitution under that name." Settle v. Van Evrea, supra.

Extent of prohibition. The provisions of this section forbidding certain judicial officers to practice law in courts of record or to serve as referees, do not merely prohibit such officers from receiving fees for services rendered by them in those capacities. On the contrary, the prohibition is absolute and precludes the officers mentioned from rendering even gratuitous services as attorneys or referees. Countryman v. Norton, (1880) 21 Hun 17. The dis qualification of an officer dates, too, from the moment of his designation and debars him from continuing to serve as attorney or referee in a case wherein he was engaged at the time he was selected for office. But the disqualification ceases on the expiration of the officer's term and he may then resume the work which he necessarily abandoned on his appointment. Countryman v. Norton, (1880) 21 Hun 17.

Waiver of disqualification.— An officer prohibited by this section from practising law in a court of record or from acting as a referee, is not competent to perform those acts even though the parties concerned assent thereto. The prohibition is founded on considerations of public policy and cannot be abrogated or defeated by individual suitors. Thus, a report rendered by a justice of the Supreme Court, acting as referee by consent, will be set aside. Countryman v. Norton, (1880) 21 Hun 17.

Determination of population of county.- An objection that a referee in an action for an accounting was disqualified because at the time of his appointment he was the county judge of a county having more than 120,000 inhabitants cannot be sustained by the Court of Appeals where the action of the trial court overruling the objection has been unanimously affirmed by the Appellate Division and where the last public record preceding the appointment shows the population of the county to have been less than 120,000. If the question as to population is purely one of fact, then the unanimous affirmance by the Appellate Division of the finding of the trial court is conclusive under section 9 of this article. If, on the other hand, the inquiry involves matters of judicial cognizance, the last official census is determining, inasmuch as the court can take judicial notice of nothing but facts authenticated by public records. Adams v. Elwood, (1903) 176 N. Y. 106, 68 N. E. 126, affirmed 61 App. Div. 622, 70 N. Y. S. 1134, 72 App. Div. 632, 76 N. Y. S. 1008.

Disbarment from practice of law of officer violating prohibition.— The Appellate Division of the Supreme Court has no inherent jurisdiction to suspend from the practice of law a surrogate of a county having a population exceeding one hundred and twenty thousand who practices law during his term of office, in violation of this section, as "section 11 of article 6 of the constitution provides that judges of the court of appeals and justices of the supreme court may be removed by concurrent resolution of both houses of the legislature on a vote of two-thirds of all the members elected to each house; and that all other judicial officers, except justices of the peace and judges or justices of inferior courts not of record, may be removed by the affirmative vote of two-thirds of the members of the senate on the recommendation of the governor." That punishment should be deemed exclusive, in the absence of a distinct expression to the contrary. Matter of Silkman, 88 App. Div. 102, 8 N. Y. S. 1025.

8 21. Publication of statutes and judicial decisions.

The Legislature shall provide for the speedy publication of all statutes, and shall regulate the reporting of the decisions of the

courts; but all laws and judicial decisions shall be free for publication by any person.

Const. 1846, Art. VI, § 22; amended, Judiciary Article, 1869, Art. VI, § 23; amended, Const. 1894, Art. VI, § 21.

Duty of legislature with respect to report of decisions.— The legislature is not obliged itself to undertake the task of publishing the reports of judicial decisions. It is bound only to " regulate" the reporting of such "The fact of regulation implies that some one else is charged with the duty of performance.” Banks v. Hun, (1897) 20 App. Div. 501, 47 N. Y. S. 193.

decisions.

§ 22. Local judicial officers, terms not abridged.

Justices of the Peace and other local judicial officers provided for in sections seventeen and eighteen in office when this article takes effect, shall hold their offices until the expiration of their respective terms.

Const. 1894, Art. VI, § 22. See also Judiciary Article, 1869, Art. VI, § 25. Relation to article 12, section 3.- Section 3 of article 12 provides as follows: "All elections of city officers, including .. judicial officers of inferior local courts elected in any city, or part of a city

shall be held

on the Tuesday succeeding the first Monday in November, in an odd-numbered year, and the term of every such officer shall expire at the end of an oddnumbered year. . . The terms of office of all such officers which under existing laws would expire in an even-numbered year, and before the end thereof, are abridged so as to expire at the end of the preceding year." That section should be construed in connection with the instant provisions, and while the latter continue in office justices of peace and other local judicial officers holding terms at the time of the adoption of the constitution, the former cuts those terms short one year where, if allowed to run their course, they would expire in an even-numbered year. Thus, the term of office of a justice of peace holding office in the city of Brooklyn is abridged by article 12, section 3, where otherwise it would expire in an even-numbered year. Petterson v. Welles, (1896) 1 App. Div. 8, 36 N. Y. S. 1009.

Purpose of provision relative to local judicial officers. Since the constitution, while expressly continuing certain courts and placing them and their judges beyond legislative action, simply recognized other courts as existing without providing for the continuance of their judges in office, there was room for doubt, if nothing further was said, whether the existing statutory courts would be without judges because the constitution was silent upon the subject. "By inserting section twenty-two, substantially at the close of the article, where a saving clause would naturally be looked for, this doubt was removed and possible confusion prevented. As was said by one of the fourteen justices of the supreme court who have passed upon the question, all reaching the same result, 'This provision was adopted only out of caution lest a question might arise whether the general effect of the revision might not be to oust such judicial officers from their offices."" Koch v. New York, (1897) 152 N. Y. 72, 46 N. E. 170, affirming 5 App. Div. 276, 39 N. Y. S. 164.

Abolition of inferior court. "Although there were many inferior local courts of civil and criminal jurisdiction and judges or justices of inferior courts not of record, created by statute and in existence at the time the constitution was adopted, not one of them is continued eo nomine, or so

...

Courts of Special Sessions

Art. VI, § 23

embedded in that instrument as to be placed beyond the reach of the legislature, except justices of the peace in towns. While care was taken not to displace them, no limit was placed upon the power of the legislature in dealing with them, and the right to create others was expressly conferred. The logical inference is that there was no intention to limit the power of the legislature to continue or to abolish the numerous statutory courts that existed all over the state when the constitution was framed. It was left to sound legislative discretion to continue such tribunals, to create more of them or to abolish them altogether, the same as the power had been constantly exercised under prior constitutions." Koch v. New York, (1897) 152 N. Y. 72, 46 N. E. 170, affirming 5 App. Div. 276, 39 N. Y. S. 164.

Abridgment of term started before adoption of section. This section does not secure to the individuals holding inferior judicial offices at the date of its ratification the enjoyment of the full term for which they were elected. The legislature may at any time abolish any inferior court not preserved by the constitution, and its action is not objectionable because in abolishing the office it cuts short terms that had commenced when this section was adopted. Thus, chapter 601, Laws of 1895, abolishing the office of police justice in the city of New York, is constitutional though the abolition of the office involved, as a necessary and inseparable incident, the termination of the official lives of incumbents thereof who had entered upon their terms prior to the ratification of this section. Koch v. New York, (1897) 152 N. Y. 72, 46 N. E. 170, affirming 5 App. Div. 276, 39 N. Y. S. 164.

§ 23. Courts of special sessions.

Courts of Special Sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by

law.

Judiciary Article, 1869, Art. VI, § 26; continued without change in Const. 1894, Art. VI, § 23.

Relation to article 1, section 2.- Trial by jury has never been essential to the procedure in courts of Special Sessions, that matter having always been entirely subject to legislative control. Accordingly, the right to jury trial preserved inviolate by article 1, section 2 does not extend to misdemeanors whereof courts of Special Sessions have jurisdiction under this section. Nor is the constitutional right of an accused to trial by jury in anywise prejudiced by statutes authorizing the trial of misdemeanors by courts of Special Sessions either without a jury or with a jury of less than twelve men. People v. Kaminsky, (1913) 208 N. Y. 389, 102 N. E. 515; People v. Craig, (1909) 195 N. Y. 190, 88 N. E. 38; People v. Dutcher, (1880) 83 N. Y. 240, reversing 20 Hun 241; People v. Justices, (1878) 74 N. Y. 406; People v. Hunt, 157 App. Div. 848, 143 N. Y. S. 233; People v. Davis, (1911) 143 App. Div. 579, 127 N. Y. S. 1072, affirming 122 N. Y. S. 788; People v. Stein, (1903) 80 App. Div. 357, 80 N. Y, S. 847; People v. Austin, (1888) 49 Hun 396, 3 N. Y. S. 578; Devine v. People, (1880) 20 Hun 98; People v. Webb, 16 Hun 42. See also People v. McDonald, (1882) 26 Hun 165. "When the constitution conferred authority upon courts of Special Sessions to try misdemeanors, it meant the courts in question, as they were and might be constituted by the legislature, whether they authorized a jury of six or otherwise." People v. Dutcher, (1880) 83 N. Y. 240, reversing 20 Hun 241. The legislature, too, may give courts of Special Sessions exclusive jurisdiction of misdemeanors. People v. Dutcher, (1880) 83 N. Y. 240, 20 Hun 241; People v. Hunt, (1913) 157 App. Div. 848, 143 N. Y. S. 233; Devine v. People, 20 Hun, 98. See also People v. Craig, (1909) 195 N. Y. 190, 88 N. E. 38, reversing 129 App. Div. 851, 114 N. Y. S. 833. Accordingly,