Circuits.

thority to make.

Union National Bank of Troy v. Bassett, 3 Abb. N. S. 359; Union Bank v. Mott, 18 How. 506.

But it cannot vacate a judgment entered on the report of a referee on the ground that it is erroneous in law. Dana v. Howe, 13 N. Y. (3 Kern.) 306.

Special term may allow an amendment which inserts in a pleading a new cause of action or a new defense. Ford v. Ford, 35 How. 321; S. C., 53 Barb. 525.

It may open a default taken at special term or relieve from a judgment taken irregularly at general term, where the point was not before the court. Ayres v. Covill, 9 How. 573. See Corning v. Powers, 9 id. 54.

But it cannot dismiss an appeal to the general term. Harris v. Clark, 10 How. 415; Barnum v. Seneca County Bank, 6 id. 82. Nor should it attempt to review any actual determination of the general term. Ayres v. Covill, 9 How. 573; Corning v. Powers, id. 54.

Section 6. Circuits. No alteration has been made in the organization of the circuit. See ante, 315, section 3, of this article, except that the governor may appoint, in writing, extraordinary cir cuits and designate the time and place of holding the same, and the justice who shall hold the same. Laws of 1870, ch. 408,

14.

He may, also, whenever the public interest requires, designate one or more of the judges of the superior court or court of common pleas, of the city of New York, to hold circuits of the supreme court in that city. Such designation must be in writing and specify the time and place of holding such circuit. Id., §8.

When a case or bill of exceptions shall be made in any cause tried at such circuit, the same shall be settled before the judge holding the court, and the review shall be had in the same manner as if the term had been held by a justice of the supreme court. Ib. Judgment, on failure to answer, may be applied for at a circuit in the county in which the cause was triable. 33.

Rule

But it seems that hardly any step can be taken in a cause at the circuit except to try, refer or grant a new trial on the judge's minutes. Mann v. Tyler, 6 How. 236; S. C., 1 Code R. N. S. 383.

Rules and calendars.

Section 7. Chambers. No alteration has been effected in the practice at chambers since the adoption of the new article of the constitution, and we have noticed the powers and duties of justices at chambers in a previous chapter. See ante, 306 to 309, art. 3, of this chapter.

ARTICLE VII.

RULES AND CALENDARS.

Section 1. Early courts. In the act of establishment the court was authorized to make and establish such rules and orders as they might see fit "for the more orderly practicing and proceeding in the said court" (Act of 1691, 2 Paine & Duer's Prac. App. ; see 1 E. D. Smith, Introduction), and the court has always possessed and exercised this power.

Section 2. Present practice. A convention of the general term justices, the chief judges of the superior courts of cities, the chief judge of the court of common pleas of the city of New York and of the city court of Brooklyn, were authorized to meet at the capitol in the city of Albany, and on the first Wednesday in August, 1870, and every two years thereafter, to revise, alter, abolish and make rules which shall be binding upon all courts of record, so far as they may be applicable. A majority of the said justices shall constitute a quorum to do business, whether the chief judges are present or not, but each justice and chief judge is entitled to vote on all matters that come before the convention. Laws of 1870, ch. 408, § 13.

The various courts of record and general terms may make such further rules in regard to the transaction of business before them respectively, not inconsistent with the general rules, as they in their discretion may deem necessary. Rule 96.

Calendars. The clerk prepares a calendar for the various terms of the court from notes of issue filed with him. Code, § 256; Rule 48.

Issues, how disposed of. Issues on the calendar are disposed of in the following order, unless the court otherwise directs: 1. Issues of fact to be tried by a jury; 2. Issues of fact to be tried by the court; 3. Issues of law. Code, § 257. At general term, causes entitled to a preference are placed upon a separate calendar. Rule 48.

Appeals.

ARTICLE VIII.

APPEALS.

Section 1. Early courts.

a. Appeals from. In the early practice of this court, appeals lay from any judgments above the value of £100, to the governor and council, and, thence to their majesty's council, from judgments above the value of £300. Act of 1691, and acts amendatory thereto; 2 Paine & Duer's Pr. App; 1 E. D. Smith, Introduction. But, under the constitution of 1777, a court of last resort was erected, to which appeals were had. 1 E. D. Smith, Introduction, 70..

Appeals to. Appeals lay to the supreme court from judgments above the value of £20, rendered in the courts of mayor and aldermen and courts of common pleas. Ib.

Section 2. Before 1846.

Appeals from. Under the Revised Statutes, appeals from chancery, and writs of error from the supreme court, lay to the court of errors, which was empowered to reverse or affirm the judgments of the supreme court, or decrees in chancery, or give such other judgments as the law might require. 2 R. S. 166.

Appeals to. For an error of law or of fact, a writ of error lay from every court of common pleas and from the superior court of the city of New York. Laws of 1828, ch. 137, § 19. See 1 Paine & Duer's Pr. 229; Laws of 1830, ch. 24.

Section 3. Under constitution of 1846.

a. Appeals from. In proper cases an appeal could be taken from the general term of the supreme court to the court of appeals. Code, § 11.

Appeals to. Appeals might be taken to the general term of the supreme court, from the judgments rendered by a county court, or by the mayor's courts, or the recorder's courts of cities. Code, § 344.

An appeal lay upon the law, from judgments entered in the supreme court, upon the report of referees, or upon the direction of a single judge of the same court, in all cases, and upon the fact, when the trial was by the court or referees. Code, § 348.

An appeal also lay from any order affecting a substantial right,

Present practice.

made by a county court or a county judge, in any action or proceeding. Code, § 344.

Also, from an order made at special term by a single judge of this court, by a county or a special county judge, or by a recorder or by any recorder's court of any city in any stage of the action, including proceedings supplementary to execution, and might be reviewed in the following cases:

1. When it granted or refused, continued or modified a provisional remedy.

2. When it granted or refused a new trial, or when it sustained or overruled a demurrer.

3. When it involved the merits of the action, or some part thereof, or affected a substantial right.

4. When the order in effect determined the action and prevented a judgment from which an appeal might be taken.

5. When the order was made upon a summary application, in an action after judgment, and affected a substantial right. Code, $349.

Section 4. Present practice. The judiciary article of the constitution, as adopted in 1869, preserves the right of review to the court of appeals (Const., art. 6, § 6), but there has been no material change in the practice on appeals as it existed under the Code. See preceding article.

CHAPTER IX.

THE SUPERIOR COURT OF NEW YORK CITY.

ARTICLE I.

FORMER ORGANIZATION OF THE COURT.

Section 1. Historical sketch of the court. "The superior court of the city of New York" was organized by an act of the legislature, passed March 31, 1828 (Laws of 1828, ch. 137), and originally consisted of a chief justice and two associate justices (Laws of 1828, ch. 137, § 1), who were appointed by the governor, with the consent of the senate, and who held office for the term of five years (Laws of 1828, ch. 137, § 2), subject, however, to removal by the senate for cause shown, upon the recommendation of the governor. Laws of 1828, ch. 137, § 2; 1 R. S. 106, § 4. All vacancies in the offices of the judges were filled by appointment of the governor, with the concurrence of the senate. Laws of 1828, ch. 137, § 2. The compensation of the judges was to be fixed by the mayor, aldermen and commonalty of the city of New York, at a sum not less than two nor more than four thousand dollars per year, and was to be paid out of the city treasury. Laws of 1828, ch. 137, § 7.

The court possessed a seal and was organized as a court of record. Laws of 1828, ch. 137, §§ 8, 10.

The terms were held at the city hall on the first Monday of every month, and were continued and held from that time, every business day, until and including the last Saturday of the month. But the judges were at liberty to adjourn the court before that time, or from day to day, in their discretion. Laws of 1828, ch. 137, §§ 3, 4.

At its organization the court had jurisdiction to hear, try and determine all local actions arising in the city and county of New York, and all transitory actions, although the same did not arise therein, and to grant new trials. Laws of 1828, ch. 137, § 5. The court remained under this organization until the adoption of the constitution of 1846, which authorized the legislature to regulate its organization (Const. of 1846, art. 6, § 14), and to