Judicial departments; Appellate Division - Const. Art. VI, § 2

or more additional justices are needed for the speedy disposition of the business before it. Whenever the Appellate Division in any department shall be unable to dispose of its business within a reasonable time, a major-. ity of the presiding justices of the several departments at a meeting called by the presiding justice of the department in arrears may transfer any pending appeals from such department to any other department for hearing and determination. No justice of the Appellate Division shall, within the department to which he may be designated to perform the duties of an appellate justice, exercise any of the powers of a justice of the Supreme Court, other than those of a justice out of court, and those pertaining to the Appellate Division or to the hearing and decision of motions submitted by consent of counsel, but any such justice, when not actually engaged in performing the duties of such appellate justice in the department to which he is designated, may hold any term of the Supreme Court and exercise any of the powers of a justice of the Supreme Court in any county or judicial district in any other department of the state. From and after the last day of December, eighteen hundred and ninety-five, 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 of Brooklyn, and such additional jurisdiction as may be conferred by the legislature. It shall have power to appoint and remove a reporter.

The justices of the Appellate Division in each department shall have power to fix the times and places for holding Special Terms therein, and to assign the justices in the departments to hold such terms; or

Judicial departments; Appellate Division Const. Art. VI, § 2

to make rules therefor. (As amended by vote of the people Nov. 5, 1899, and by vote of the people Nov. 7, 1905.)

A quorum of four justices holding an Appellate Division of the Supreme Court are in contemplation of law the Appellate Division and their unanimous vote of affirmance is a unanimous decision within the meaning of this section and subdivision 2 of section 191 of the Code of Civil Procedure. Harround v. Brush Electric Light Co. (1907), 152 N. Y. 210.

Appointment of terms of court. The provisions of this section conferring upon the justices of the Appellate Division of each department the power of appointing terms of the Supreme Court in and for such department, relate to ordinary and usual terms of court and do not in any manner conflict with the power reposed in the governor by the statute to call extraordinary terms. People v. Gillette (1908), 191 N. Y. 107. It is within the power of the governor of the state to convene an extraordinary term of the Supreme Court for the special purpose of conducting a trial of a specific indictment for crime. People ex rel. Neef (1908), 191 N. Y. 210.

An exception that the designation of the Trial Term by the justice of the Appellate Division was not in strict compliance with the provisions of the Constitution or the statute as to the time of making the designation is not available as a ground of attack upon the regularity of an indictment found at such term by a grand jury selected and organized in due form. People v. Youngs (1906), 151 N. Y. 210.

Designation of justice to hold trial terms. - The provisions of this section and of section 232 of the Code of Civil Procedure obviously limit the justices of the Appellate Division to appointing to duty the justices of the department in which the Appellate Division is located. But if a justice of another department is assigned to hold a Trial Term in their department such a formal assignment is a mere invitation, which may be declined or accepted, and, if it is accepted by the justice, he has jurisdiction to hold the term, provided he is not a member of the Appellate Division, by force of the provision of section 6, post, of the Constitution that "any justice of the Supreme Court, except as otherwise provided in this article, may hold court in any county." People v. Herrmann (1906), 149 N. Y. 190.

Designation of justice to Appellate Division; effect of. Although a justice of the Supreme Court has announced his decision in an equity case before he is designated to the Appellate Division, he is thereafter disqualified by this section from acting further in the case and cannot sign and file his decision. Under such circumstances there must be a new trial. Williamson v. Randolph (1906), 111 App. Div. 539, 97 N. Y. Supp. 949, affd. 185 N. Y. 603.

'Terms of office; vacancies, how filled

Const. Art. VI, §4

An order of reference made at Special Term by a justice who at the time had been appointed to the Appellate Division is a nullity and in violation of this section. Owasco Lake Cemetery v. Teller (1906), 110 App. Div. 450, 96 N. Y. Supp. 985.

Judge or justice not to sit in review; testimony in equity cases. § 3. No judge or justice shall sit in the Appellate Division or in the Court of Appeals in review of a decision made by him or by any court of which he was at the time a sitting member. The testimony in equity cases shall be taken in like manner as in cases at law; and, except as herein otherwise provided, the legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it has heretofore exercised.

Application of section. - An appeal from an order vacating an ex parte order for the examination of a person before trial may be heard before General Term of which the judge who granted the original order is a member. Phillips v. Germania Bank (1888), 107 N. Y. 630. And see Pistor v. Hatfield (1871), 46 id. 249.

This section does not restrict the power of the legislature to provide for equitable and legal relief in one suit. Phillips v. Gorham (1858), 17 N. Y. 270.

Court has no power in an equity case to make a compulsory order directing testimony to be taken before a referee and the cause to be brought to trial upon the pleadings and the evidence so taken. Farmers' Nat. Bank of Malone v. Houston (1887), 44 Hun, 567.

The provision of the Constitution prohibiting a justice from sitting in review of a decision made by him prevents such justice from sitting in review of an order which denied a motion to vacate an order made by him. Van Arsdale v. King (1897), 152 N. Y. 69.

Terms of office; vacancies, how filled. - § 4. The official terms of the justices of the Supreme Court shall be fourteen years from and including the first day of January next after their election. 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

Certain courts abolished Const. Art. VI, § 5

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, which shall continue until and including the last day of December next after the election at which the vacancy shall be filled.

The term shall be for the full fourteen years, and no vacancy can exist longer than the term. People ex rel. v. Potter (1872), 47 N. Y. 375.

The words" in session " indicate a present acting or being of the senate as a body, and the governor may appoint during a long adjournment. People v. Fancher (1872), 50 N. Y. 288.

City Courts abolished; judges become justices of Supreme Court; salaries; jurisdiction vested in Supreme Court. § 5. 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 term 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

Court of Appeals Const. Art. VI, § 7

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.

Circuit Courts and Courts of Oyer and Terminer abolished. § 6. 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.

The abolition of the Court of Oyer and Terminer was self-executing and an order transferring a pending indictment was unnecessary. People v. Hoch (1896), 150 N. Y. 291.

Court of Appeals. — § 7. 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 mem