Against corporations - Attachment against non-residents.

Section 3. Against corporations. It has no jurisdiction to wind up the affairs of a corporation and distribute its effects through a receiver, nor to inquire into the validity of its election of officers, and to restore one unlawfully displaced. Brahe v. Pythagoras Association, 11 How. 44; S. C., 4 Duer, 658. See Kattenstroth v. The Astor Bank, 2 Duer, 632. Nor can it ap

point a receiver of a foreign corporation. Day v. United States Car Spring Co., 2 Duer, 608.

Section 4. Commissions of lunacy. This court cannot issue commissions in cases of lunacy, nor can it make any decree affecting the lunatic's estate. Matter of Brown, 1 Abb. 108; S. C., 4 Duer, 613.

Section 5. Commission to take testimony. The court will not compel the attendance of witnesses to be examined under a commission from a foreign court. Matter of Jay, 5 Sandf. 674.

Section 6. Statutory jurisdiction. As the superior court is a court created by special statute, of local and limited powers, it is not expedient to transcend the jurisdiction expressly defined by statute. Matter of Jay, 5 Sandf. 674.

The

Section 7. Proceedings against vessels. Proceedings in rem against vessels cannot be maintained in the superior court. statute authorizing such proceedings in State courts (Laws of 1862, ch. 482) is unconstitutional and void. Bird v. Steamboat Josephine, 39 N. Y. (12 Tiff.) 19; S. C., 6 Trans. App. 5; reversing S. C., 50 Barb. 501. See Ferran v. Hosford, 54 id. 200; Brookman v. Hamill, 43 N. Y. (4 Hand) 554. As to a lien for labor and materials, see Sheppard v. Steele, id. 52; Delany v. Brett, 4 Rob. 712; 1 Abb. N. S. 421.

Section 8. Attachment against non-residents. Under the second subdivision of section 33 of the Code, this court has no jurisdiction whatever, unless the defendant is a resident, or, if a non-resident, is personally served with the summons within the city; hence, if an attachment is issued in an action against a single non-resident defendant, and a levy is made thereunder before the service of the summons upon such defendant within the city, the levy so made is unauthorized and void. Kerr v. Mount, 28 N. Y. (1 Tiff.) 659; Zeregal v. Benoist, 33 How. 129; S. C., 7 Rob. 199; Fisher v. Curtis, 2 Sandf. 660; S. C., 2 Code R. 62; Id. 63, note. See Corson v. Ball, 47 Barb. 452. summons and its service.

See

1

Powers of the court and of the judges.

ARTICLE V.

POWERS OF THE COURT AND OF THE JUDGES.

Section 1. Under the constitution. The superior court of the city of New York is continued, with the powers and jurisdiction it now has, and the legislature is authorized to enlarge such powers and jurisdiction. Const., art. 6, § 12.

Section 2. Process in other counties. Subpoenas issuing from this court are obligatory upon any person duly served therewith in any part of the State, and the court has power to compel obedience thereto by attachment. Laws of 1828, ch. 137, § 14.

It has power, also, to compel the return of an execution issued to a foreign county, upon one of its judgments docketed there. Shindler v. Blunt, 1 Sandf. 683.

Section 3. Unwilling witness. The court may issue a summons, requiring any witness whose deposition is necessary upon a motion or other proceeding, to attend before a judge thereof and make such deposition, and obedience to such summons may be enforced as in case of a subpoena. Laws of 1840, ch. 276, § 3. This court may compel the parties to actions, in Gould v. McCarty, 11 Laws of 1841, ch. 38;

Section 4. Discovery of papers, etc. the discovery of books, papers, etc., by the same manner as the supreme court. N. Y. (1 Kern.) 575; 2 R. S. 207, § 21; Moore v. Pentz, 2 Sandf. 664; Wait's Code, 57, 735 to 739. Section 5. Appointment of terms. The court may appoint the general and special terms thereof, prescribe their duration, and from time to time alter such appointment. Code, § 35.

Section 6. Appointment of officers; rules. The court is authorized to appoint a clerk (1 R. S. 108, § 14; Laws of 1828, ch. 137, § 9), and a crier. Code, § 39. It may also make rules for the transaction of its business. Supreme Court Rules, 96.

ARTICLE VI.

POWERS OF THE JUDGES.

Section 1. Chamber business. The justices of this court are authorized to perform all the duties which the justices of the supreme court, out of term, are authorized to perform. Laws of 1828, ch. 137, § 23.

As supreme court commissioners - Judgments.

Either of the judges of the court may hold the same for the hearing of non-enumerated motions, and may exercise such power at chambers. Laws of 1830, ch. 24, § 2; Laws of 1828, ch. 137, § 6.

Section 2. As supreme court commissioners. Although the office of supreme court commissioner is abolished, yet the powers incident to it are preserved to the judges of this court. Laws of 1847, ch. 255, §7; 2 R. S. 280, 281; Renard v. Hargous, 13 N. Y. (3 Kern.) 259; affirming S. C., 2 Duer, 540.

Acting as such they may issue attachments against absconding, concealed or non-resident debtors under the authority of the Revised Statutes. Renard v. Hargous, 13 N. Y. (3 Kern.) 259; affirming S. C., 2 Duer, 540; Nash v. People, 36 N. Y. (9 Tiff.) 609, 613.

They may issue writs of habeas corpus. The People v. Porter, 1 Duer, 709; The People v. Lemmon, 5 Sandf. 681; 2 R. S. 564, § 23.

Section 3. Different judges. Any proceeding commenced before one judge of this court may be continued before any other judge thereof. Laws of 1840, ch. 276, § 2. See Dresser v. Van Pelt, 15 How. 19; 6 Duer, 687; Holstein v. Rice, 15 Abb. 307; 24 How. 135; Hilton v. Patterson, 18 Abb. 245.

Section 4. Holding terms of supreme court. The constitution, as amended in 1869, authorizes the legislature to detail judges of the superior court to hold circuits and special terms of the supreme court, in the city of New York, as the public interest may require. Const., art. 6, § 12; Laws of 1870, ch. 408, § 8.

ARTICLE VII.

JUDGMENTS, HOW RENDERED.

Section 1. Upon appeal. Judgments upon appeal in this court must be given at the general term (Code, § 37), and the concurrence of two judges is necessary to pronounce such judgment. Code, § 38. If two do not concur, the appeal must be reheard. Ib. If the argument is heard by three judges, a judgment rendered by two, without consultation with the third, will be allowed to stand, but a consultation in such cases is always preferable. Parrott v. The Knickerbocker Ice Co., 38 How. 508; 8 Abb. N. S. 234; 1 Sweeny, 533.

Section 2. Other judgments. All other judgments must be given at the special term. Code, § 37

ARTICLE VIII.

OFFICERS.

Section 1. Clerk. The court is authorized to appoint a clerk, whose duty is to keep an office at the city hall, and attend the court and officiate as clerk thereof. 1 R. S. 108, § 14; Laws of 1828, ch. 137, § 9.

Section 2. Crier. A crier shall be appointed by the court, to hold his office during the pleasure of the court, and to receive a salary which shall be fixed by the supervisors of the city of New York, and paid out of the county treasury. Code, $ 39.

Section 3. Attorneys. Attorneys when admitted to practice by the supreme court are entitled to all the privileges of this court. Laws of 1847, ch. 280, § 75; 4 Stat. at Large, 577, § 75.

a. Appointment. The court has power to appoint general and special terms thereof, to prescribe their duration, and to alter such appointment from time to time. Code, § 35.

b. Rooms, etc. The supervisors of the county of New York shall provide the court with rooms, attendants, fuel, lights and stationery, suitable and sufficient for the transaction of its business. If the supervisors neglect to do so, the court may order the sheriff to supply the want, and his expenses in so doing become a county charge. Code, §§ 28, 51.

c. Number of judges.

Any two of the justices of the superior court may hold a general term thereof. Code, § 46. d. Number of terms. One or more general terms may be held at the same time. Code, § 46.

e. Jurisdiction. The general term alone has the power to render a judgment upon an appeal (Code, § 37), and it can exercise only an appellate jurisdiction, except in the cases pro

Removal of causes into the supreme court.

vided for by section 265 of the Code. Matter of Walker, 2 Duer, 655; Mather's Case, 14 Abb. 45.

Section 2. Special term.

a. By whom held.

The special term of this court may be held by any one of the judges thereof. Code, § 46. One or more special terms may be held at the same time. Ib.

b. Appointment of terms, etc. The provisions noticed above for the appointment of terms, and the providing of terms, etc., for the general term of this court, are equally applicable to the special term. Code, §§ 35, 51, 28.

c. Jurisdiction. All judgments except judgments upon appeal must be given at the special term. Code, § 37.

Section 3. Trial term.

The powers and offices of the trial term of this court are identical with those of the "circuit" in the supreme court.

ARTICLE X.

REMOVAL OF CAUSES INTO THE SUPREME COURT, AND FROM THE SUPREME COURT.

Section 1. Removal of causes into the supreme court.

a. What actions may be removed. Any action brought under subdivision 2 of section 33 of the Code, and pending in the superior court of the city of New York, may be removed into the supreme court, and the place of trial therein may be changed by the said supreme court as if such action had been commenced in that court. Code, § 33, subd. 2.

b. How removed. Such removal and change of place of trial is effected by order made in the supreme court upon motion. Upon filing a certified copy of such order in the office of the clerk of the superior court, such cause shall be deemed to be removed into the supreme court, Code, § 33, subd. 2.

c. Proceedings after removal. The supreme court shall proceed in such action as if the same had been originally com'menced therein, and the clerk with whom such order of removal is filed must forthwith deliver to the clerk of the county in which, by such order, the trial is directed to be had, to be filed in his office, all process, pleadings and proceedings relating to such cause. Code, & 33, subd. 2.

d. Removal discretionary. The power of the supreme court,