CHAPTER VIII.

OF THE SUPREME COURT.

ARTICLE I.

ORGANIZATION.

Section 1. Of the early court in this State. The supreme court of the State of New York was established by an act of the representative assembly of the province of New York, which was convened in the year 1691. Bradford's Col. Sess. Laws, Ed. of 1691. This act took effect for two years only, but it was renewed from time to time, until 1699, when Governor Bellamont issued an ordinance continuing the court indefinitely, and embodying the same provisions as the act of establishment, and the acts amendatory thereof. 2 Rev. Laws of 1813, app. No. 5. See 1 E. D. Smith, Introduction, 51. It has been thought by some that, in 1697, the act of establishment was permanently continued (Graham on Jurisdiction, 137), but it is probable that the authority of the court, up to a comparatively late period, had its source in the ordinance mentioned above, and that of 1704, the latter of which was issued by Governor Cornbury. 2 Rev. Laws of 1813, app. 6.

Previous to this time there had existed in the province a court of oyer and terminer, established by the act "to settle courts of justice, passed by the representative assembly in 1683, and which was composed of two judges commissioned by the governor, each of whom held a circuit of the court in each of the counties of the province twice a year, having associated with him four of the justices of the peace of the county, and in the city of New York the mayor, recorder and four aldermen. This court had jurisdiction of all causes, civil and criminal, triable at the common law, and was the general appellate court. Mansfield's Laws of 1683, in N. Y. State Library; 2 Rev. Laws of 1813, app. 9. Under this act, the court thus constituted continued to be the highest court of law in the province until the passage of the colonial act above referred to, in 1691 (see Graham on Jurisdiction, 135), by which the court of oyer and terminer was abolished,

Of the early court in this State.

but its name was retained to designate the criminal circuit of the supreme court.

As it was at first organized, the supreme court was composed of a chief judge and four assistant justices, appointed by the governor, and was held only in the city of New York (see 1 E. D. Smith, Introduction, 49), but in 1692 the act was so amended that the court should sit twice a year in the city of New York, and that one of the justices should go the circuit annually, and hold the court in each of the other counties. 3 Col. Doc. 716. By the ordinance of Governor Cornbury issued in 1704, the court was to be held four times in each year in the city of New York, and at such other places as by proclamation the governor and council might appoint. 5 Col. Doc. 409; 2 Rev. Laws of 1813, app. No. 6.

Bellamont's ordinance of continuance made no provision for the number of judges and, by common consent, only, then acted as such for about fifty years when an additional one was appointed. Rec. of Com's V. 147-224; 1 E. D. Smith, Preface, 62. Thus constituted, the court continued until the breaking out of the revolution and the adoption of the first State constitution in 1777, which recognized the court as an existing tribunal, and continued it as theretofore. Const. of 1777, 24, 25, 33. After the close of the revolution the court was held regularly at New York and Albany, circuits being held for the trial of causes at nisi prius in the other counties, and with a chief justice and four puisne judges, all of whom held their office until sixty years of age, or during good behavior, and thus the court continued until the adoption of the constitution of 1822. Graham on Jurisdiction, 141-144; 1 E. D. Smith, Introduction, 70.

Section 2. Court before 1846. The next constitution, which went into effect January 1, 1823, made considerable change in the structure of the court, for it reduced the number of justices to three-a chief justice and two justices-any of whom were empowered to hold the court. Const. of 1823, art 5, § 4. It also authorized the legislature to distribute the State into not less than four, nor more than eight circuits, for each of which a circuit judge was to be appointed, in the same manner, and for the same time, as the justices of the supreme court, and who should possess the powers of a supreme court justice at chambers, and in the trial of causes at nisi prius. Const. of 1823, art. 5, § 5. This was effected by the legislature soon after, by the division of the

Court under constitution of 1846-Present organization.

State into eight circuits. 2 R. S. 201; 1 id. 97. In each of the counties separately organized there were to be held at least two circuits and courts of oyer and terminer, and in the city of New York at least four terms in each year. 2 R. S. 201, § 2. The justices of the court and the circuit judges were appointed by the governor, by and with the advice and consent of the senate. Laws of 1828, ch. 137, § 2; id. ch. 321, § 4. They held their office during good behavior, or until they reached the age of sixty years, but might be removed by a joint resolution of the two branches of the legislature. 1 R. S. 106, § 2; Laws of 1828, ch. 321, § 4. Under this organization, substantially, the court remained until the adoption of the constitution of 1846.

Section 3. Court under constitution of 1846. The court was continued by the constitution of 1846 as "a supreme court, having general jurisdiction in law and equity." Const of 1846, art. 6, § 3. The State was divided into eight judicial districts, of which the city of New York was one, and the electors of each of the several districts elected four justices of the supreme court, except the city of New York, which elected five. Const., art. 6, 84, 11; Laws of 1852, ch. 374. Their term of office was eight years, and they were so classified that one in each district went out of office every two years. Const., art. 6, § 4. In case of a vacancy, it was filled by appointment of the governor until the next general election of justices, when it was to be filled for the residue of the unexpired term, and they might be removed by a concurrent resolution of both houses of the legislature. Const., art. 6, §§ 11, 13. From the justices having the shortest time to serve, four were selected, according to the statute, and each were required to sit in the court of appeals for one year. Laws of 1847, ch. 280, § 6. And the justice in each judicial district having the shortest time to serve, and who was not a member of the court of appeals, was the presiding justice of the supreme court. Laws of 1847, ch. 280, § 15.

Section 4. Present organization. The constitution, as amended in 1869, provided for the continuance of "the existing supreme court," and that it should be composed of the justices then in office, and their successors. It also provided that the judicial districts of the State should remain until changed by the legislature; but the number of the districts cannot be increased. Const., art. 6, § 6.

The court is at present composed of thirty-three justices elect

Present organization.

ed by the people of the respective districts, for the term of fourteen years, four being elected in each district, except that composed of the city of New York, which elects five. Const., art. 6, §§ 6, 13. No justice is allowed to sit as such longer than until and including the last day of December next, after he shall be seventy years of age. Const., art. 6, § 13.

They receive as compensation the sum of $6,000 annually, and an allowance of five dollars per day for their expenses when absent from their homes and engaged in the duties of their office. Laws of 1870, ch. 408, § 9. They can receive no fees or other perquisites of office, nor can they practice as attorney or counsel in any court of record in the State, or act as referee. Const., art. 6, § 21. They may be removed from office by a concurrent resolution of both houses of the legislature, if two-thirds of both houses concur therein; but they must have an opportunity of being heard after having been served with a copy of the charges. Const., art. 6, § 11.

Vacancies occurring otherwise than by the expiration of a term shall be filled for a full term at the next general election happening not less than three months after the vacancy occurs, and until it is so filled,, the governor by and with the advice and consent of the senate, or, if the senate be not in session, the governor may appoint to fill such vacancy, and such appointment continues until and including the last day of December next after the election at which the vacancy shall be filled. Const., art. 6, §.9. A resignation of a justice of the supreme court on the 6th of November, 1871, when another person was elected on the 7th of the same month, creates a vacancy until the 31st day of December following, and no longer. This vacancy may be filled by the governor; but, on the 1st day of January following, the newly elected justice will take the office for a full term. People ex rel. Jackson v. Potter, 42 How. 260.

On the 25th day of May, 1870, the governor appointed from the whole bench of the supreme court a presiding justice and two associate justices, to compose a general term in each of the four departments of the State, and it his duty to designate hereafter justices to fill those positions as often as vacancies may occur. The presiding justices, when appointed, continue as such during their term of office, and the associate justices act as such for five years from the last day of December next, after their designation. Laws of 1870, ch. 408, § 3. In case of the absence

Jurisdiction - Of the early court in this State.

of the presiding justice from the place appointed for holding a general term, the associate justice present, who has the shortest time to serve, may act as such; and if an associate justice be absent, the presiding justice may select some other justice of the supreme court to sit until the associate shall attend; and any justice designated to one department may sit in any other in place of any justice of such other department. Laws of 1870, ch. 408, §§ 4, 6. But no justice can sit to hear a case upon appeal to review a decision made by him, or by any court of which he was at the time a sitting member. Const., art. 6, § 8.

ARTICLE II.

JURISDICTION.

Section 1. Of the early court in this State. The act of the general assembly which established the supreme court declared that it should have cognizance of all actions, civil, criminal and mixed, as fully and amply as the courts of king's bench, common pleas and exchequer of England. 1 E. D. Smith, Introduction, 49. In and to which supreme court all and every person or persons whatsoever, should or might, if they should see meet, commence or remove any action or suit, the debt or damage laid in such action or suit being upward of twenty pounds, and not otherwise, or should, or might, by warrant, writ of error or certiorari, remove out of any of the respective courts of mayor and alderman, session and common pleas, any judgment, information or indictment there had or depending, and might correct errors in judgment, or revise the same if there should be just cause, provided, always, that the judgment removed should be upward of the value of twenty pounds. Graham on Jurisdiction, 136. The constitution of 1777 assumed the existence of the court and provided simply for its organization without attempting to define or limit its jurisdiction (Const. of 1777, §§ 24, 25), and so of the various legislative enactments down to the time of the new constitution of 1823. Graham on Jurisdiction, 140. The constitution of 1822-3 omitted to define its powers, assuming it to be a court of well-established common-law jurisdiction, and provided only in respect to the number of its judges and the tenure of their office, and continuing it with its original powers and juris