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applicant." Per Martin, J., in People v. Lyman, (1898) 157 N. Y. 368, 52 N. E. 132, affirming 30 App. Div. 135, 50 N. Y. S. 444, 51 N. Y. S. 641; People v. Mosher, (1899) 45 App. Div. 68, 61 N. Y. S. 452, affirmed 163 N. Y. 32, 57 N. E. 88, 79 A. S. R. 552; Matter of Ricketts, (1911) 111 App. Div. 669, 98 N. Y. S. 502. Thus, the section does not require the appointment of the person standing highest in an examination held to ascertain merit or fitness. People v. Mosher, supra. The Law of 1883 providing for a probationary appointment as one of the means of determining the merit and fitness of applicants is not invalid. People v. Lyman, supra. And Rule 15, subdivision 2, adopted by the municipal civil service commission of the city of New York, which provides that those taking examinations for promotion shall have served with fidelity for not less than six months, in positions of the same group or general character, in the grade next lower, in the same department," is not in violation of this section. The reiteration here of the words so far as practicable," establishes the fact that the constitutional convention and the people who approved its work were distinctly aware that competitive examinations were not always practicable, and that the results thereof would not always produce the best results in the public service. "The constitution, therefore, instead of a hard and fast rule, left some leeway. Especially is it true in regard to promotions that much more than mere proficiency in paper examination is requisite for the determination of efficiency. Above all, in what might be called those quasi-military bodies, the police and fire departments, where discipline in the rank and file and effectiveness in fighting crime and fire depend so much upon the coolness, skill, steadiness, experience and qualities of command in the superior officers." Matter of Ricketts, supra.

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IV. VETERANS.

Preference of veterans in examinations.-"This section of the Constitution, read according to its letter and spirit, contemplates that in all examinations, competitive and noncompetive, the veterans of the civil war have no preference over other citizens of the state." In re Keymer, (1896) 148 N. Y. 219, 42 N. E. 667, 35 L. R. A. 447, affirming 89 Hun 292, 35 N. Y. S. 161; Jones v. Willcox, (1903) 80 App. Div. 167, 80 N. Y. S. 420; People v. Cobb, (1897) 13 App. Div. 56, 43 N. Y. S. 120; Matter of Sweeley, (1895) 12 Misc. 174, 33 N. Y. S. 369, affirmed 146 N. Y. 401, 42 N. E. 543. See also Stutzbach v. Coler, (1901) 168 N. Y. 416, 61 N. E. 697, affirming 62 App. Div. 219, 70 N. Y. S. 901. Accordingly, the Act of 1895 is unconstitutional in exempting from competitive examination any veteran seeking a position the compensation of which does not exceed four dollars per day while requiring every other citizen to submit thereto. In re Keymer, supra. Preference in employment.- The preference accorded to veterans by the constitution extends not only to their appointment and promotion but to their retention in employment so long as the position to which they have been appointed exists. Otherwise, that preference would be a hollow sham as a veteran could be discharged immediately after his employment and another appointed to his position. Seeley v. Stevens, (1907) 190 N. Y. 158, 82 N. E. 1095, reversing 119 App. Div. 910, 104 N. Y. S. 1145; Pratt v. Phelan, (1901) 67 App. Div. 349, 73 N. Y. S. 823; Stutzbach v. Coler, (1901) 62 App. Div. 219, 70 N. Y. S. 901, affirmed 168 N. Y. 416, 61 N. E. 697. See also People v. Elmendorf, (1899) 42 App. Div. 306, 59 N. Y. S. 115. And see notes under CIVIL SERVICE LAW.

Additional statutory preference to veterans. The legislature, though not competent to enact laws repugnant to the provisions giving preference to veterans, may adopt additional measures harmonious therewith. Thus, it may, in furtherance of the policy of preferring veterans, provide for their retention in the public service. Chapter 370, Laws of 1899, providing that no employee who is an honorably discharged soldier shall be removed from

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his position except for incompetency or misconduct shown after a hearing or stated charges is valid and a removal made in violence of its provisions, though for the purposes of economy and in a case where the veteran removed was the least efficient person employed is void. Stutzbach v. Coler, (1901) 168 N. Y. 416, 61 N. E. 697, affirming 62 App. Div. 219, 70 N. Y. S. 901; Seeley v. Stevens, (1907) 190 N. Y. 158, 82 N. E. 1095, reversing 119 App. Div. 910, 104 N. Y. S. 1145. Compare In re Keymer, (1896) 148 N. Y. 219, 42 N. E. 667, 35 L. R. A. 447, affirming 89 Hun 292, 35 N. Y. S. 161; Matter of Sweeley, (1895) 12 Misc. 174, 33 N. Y. S. 369, affirmed 146 N. Y. 401, 42 N. E. 543. See p. 399, Preference of Veterans in Examination. Note and subdivision.

Knowledge of appointing power of veteran's character as affecting right to preference.— The right of a veteran to preference does not depend on the knowledge of the appointing power that he is in fact a veteran. Thus, the removal of a veteran from office is not to be justified by the circumstance that the officer ordering the removal was ignorant of the veteran's character as such, and a veteran who has been so removed is entitled to reinstatement on calling the attention of the officer to his right to preference. Stutzbach v. Coler, (1901) 168 N. Y. 416, 61 N. E. 697, affirming 62 App. Div. 219, 70 N. Y. S. 901; Pratt v. Phelan, (1901) 67 App. Div. 349, 73 N. Y. S. 823. See also People v. Stratton, (1903) 79 App. Div. 149, 80 N. Y. S. 269. It has been held, however, that while the right of a veteran to preference in appointment and promotion is secured by the constitution and hence cannot be abridged, yet being personal in its nature and involving no considerations of public policy or morals, the right may be waived by any individual to whom it attaches; that waiver will be implied from failure to assert the right, and that where an employee in the civil service has failed prior to his dismissal from the service to notify the appointing power of his character as a veteran, such a notice served after dismissal is not effectual to require his reinstatement. People v. Simonson, (1901) 64 App. Div. 312, 72 N. Y. S. 84.

ARTICLE VI.

§ 1. Supreme court; how constituted; judicial districts. Justices; number and election.

Alteration of judicial districts; reapportionment of justices.

Increase in number of justices.

Additional judicial district.

The Supreme Court is continued with general jurisdiction in law and equity subject to such appellate jurisdiction of the Court of Appeals as now is or may be prescribed by law not inconsistent with this article. The existing judicial districts of the State are continued until changed as hereinafter provided. The Supreme Court shall consist of the justices now in office, and of the Judges transferred thereto by the fifth section of this article, all of whom shall continue to be Justices of the Supreme Court during their respective terms, and of twelve additional Justices who shall reside in and be chosen by the electors of the several existing judicial districts, three in the first district, three in the second, and one

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in each of the other districts; and of their successors. cessors of said justices shall be chosen by the electors of their respective judicial districts. The Legislature may alter the judicial districts once after every enumeration under the Constitution, of the inhabitants of the State, and thereupon reapportion the Justices to be thereafter elected in the districts so altered.

The Legislature may from time to time increase the number of justices in any judicial district except that the number of justices in the first and second district or in any of the districts into which the second district may be divided, shall not be increased to exceed one justice for each eighty thousand, or fraction over forty thousand of the population thereof, as shown by the last State, or Federal census or enumeration, and except that the number of justices in any other district shall not be increased to exceed one justice for each sixty thousand or fraction over thirty-five thousand of the population thereof as shown by the last State or Federal census or enumeration. The Legislature may erect out of the Second Judicial District as now constituted, another judicial district and apportion the justices in office between the districts, and provide for the election of additional justices in the new district not exceeding the limit herein provided.

Const. 1821, Art. V, § 4; amended, Const. 1846, Art. VI, § 3; amended, Judiciary Article, 1869, Art. VI, § 6; amended in 1879 and in 1888; amended, Const. 1894, Art. VI, § 1; amended in 1905.

The theory of this judiciary article is to simplify the judicial system by reducing the number of high courts and to embed those retained so thoroughly in the fundamental law that they cannot be changed or abolished without an amendment to the constitution. People v. Luce, (1912) 204 N. Y. 478, 97 N. E. 850, Ann. Cas. 1913C 1151, affirming 148 App. Div. 933, 132 N. Y. S. 1143, which affirmed 74 Misc. 551, 133 N. Y. S. 9; Koch v. Mayor, (1897) 152 N. Y. 72, 46 N. E. 170.

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"The origin of the Supreme Court was through a statute passed by the legislature of the colony of New York on the 6th day of May, 1691, whereby, among other things, it was enacted that there shall be held and kept a Supreme Court of Judicature, which shall be Duely & Constantly kept att the Citty of New Yorke and not Elsewhere, att the severall & Respective times hereafter mentioned. And that there be five Justices at Least appointed & Commissionated to hold the same court, two whereof together with one Chief Justice to be a Quorum. Which Supreme Court are hereby fully Impowered and Authorized to have Cognizance of all pleas, Civil Criminall, and Mixt, as fully and amply to all Intents & purposes whatsoever, as the Courts of Kings Bench, Comon Pleas, & Exchequer within their Majestyes Kingdome of England, have or ought to have, . . . This statute was to remain in force for only two years, but it was renewed, recognized and continued by colonial act or royal ordinance substantially in the words quoted until the adoption of our first constitution. (1 Col. Laws, pp. 226-229, 303-306, 358, 380; 2 id. 462, 639, 948; 3 id. 546, 780, 1007; 4 id. 1088; 5 id. 73.) As has been well said by a recent writer, ‘This act founded the Supreme Court.

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Not only did this act erect the tribunal which still continues the great law court of the state, but it vested in it a jurisdiction which change of government and constant reforms and revolutions in procedure have been powerless to abridge in any material respect, for while its jurisdiction has been enlarged by its union with the Court of Chancery, its ancient jurisdiction still remains unimpaired. The Supreme Court of the province was the instrument by which the great body of the jurisprudence of the English common law was applied to New York.” In re Steinway, (1899) 159 N. Y. 250, 53 N. E. 1103, 45 L. R. A. 461, affirming 31 App. Div. 70, 52 N. Y. S. 343. Scope of general jurisdiction conferred on Supreme Court.— Of the general jurisdiction conferred upon the Supreme Court by this section, the following has been said: "The terms used are so comprehensive, that they include all cases of every description in law and equity, from the most important and complicated to the most simple and insignificant, and they imperatively and positively establish the court with that extended jurisdiction. The language made use of, is, that there shall be such a court, having the jurisdiction declared; and that was given to it, not to be exercised or declined as the legislature might afterward provide or enact, or as that body and the court combined should at any time elect, but for the purpose of being at all times maintained and preserved for the benefit of those who might be parties to controversies in either law or equity. The jurisdiction conferred upon the court, included both the power to entertain, progress, and, in the end, determine all civil actions, and the duty also to do those things; and for that reason, suitors in such cases have the right to require them to be done. The jurisdiction was conferred for their benefit, and to secure and promote the stability and good order of the state." De Hart v. Hatch, (1875) 3 Hun 375. To the same effect, People v. Luce, (1912) 204 N. Y. 478, 97 N. E. 850, Ann. Cas. 1913C 1151, affirming 148 App. Div. 933, 132 N. Y. S. 1143, which affirmed 74 Misc. 551, 133 N. Y. S. 9.

Jurisdiction of Supreme Court over inferior courts.- By virtue of this section the Supreme Court has general jurisdiction over inferior courts of record, including probate courts. Thus, it has inherent power to grant a stay of proceedings upon an appeal from an order made in a Surrogate's Court. Matter of Pye, (1897) 21 App. Div. 266, 47 N. Y. S. 689.

Extent of equitable jurisdiction of Supreme Court generally." The authority given, in terms is, general jurisdiction in law and equity;' and that, of necessity, includes all cases which may be properly comprehended by established and existing equitable principles. The test of jurisdiction cannot be restricted to the existence of some definite precedent for the action which may be brought. That would destroy the flexibility required to maintain the utility of the court, in the demands necessarily made for the exercise of its authority in new cases always arising out of the enterprises and progress of society. The novelty of the case can form no well-founded objection to the jurisdiction over it, if it falls within the limits of any defined equitable principle." Youngs v. Carter, (1877) 10 Hun 194.

Abrogation of distinction between law and equity. The provisions giving general jurisdiction in law and equity does not as recognizing separate jurisdictions at law and in equity impose on the legislature the duty of preserving distinct methods of enforcing legal and equitable rights, nor does it restrict its power to provide for both equitable and legal relief in the same suit. Phillips v. Gorham, (1858) 17 N. Y. 270. Compare Reubens v. Joel, (1856) 13 N. Y. 488. And see Art. 6, § 3. Hence, where the code authorizes the joinder of legal and equitable causes of action, the plaintiff may, in an action to recover the possession of land, attack a deed under which the defendant claims title, both upon legal grounds and upon such as before the code were of purely equitable cognizance. Phillips v. Gorham, (1858) 17 N. Y. 270.

Legislative abridgment of jurisdiction of Supreme Court. The legislature cannot limit or abridge the general jurisdiction of the Supreme Court as

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conferred by this section. People v. Luce, (1912) 204 N. Y. 478, 97 N. E. 850, A. C. 1913C 1151, affirming 149 App. Div. 933, 132 N. Y. S. 1143, which affirmed 74 Misc. 551, 133 N. Y. S. 9; In re Stilwell, (1893) 139 N. Y. 337, 34 N. E. 777, affirming 68 Hun 406, 23 N. Y. S. 65; People v. Nichols, (1880) 79 N. Y. 582, reversing 18 Hun 530; Matter of Pye, (1897) 21 App. Div. 266, 47 N. Y. S. 689; Getman v. New York, (1892) 66 Hun 236, 21 N. Y. S. 116; Mussen v. Ausable Granite Works, (1892) 63 Hun 367, 18 N. Y. S. 267; People v. Coughtry, (1890) 58 Hun 245, 12 N. Y. S. 259, affirmed 125 N. Y. 723, 26 N. E. 756; People v. Wayne County, (1888) 49 Hun 476, 2 N. Y. S. 555; De Hart v. Hatch, (1875) 3 Hun 375. See also Alexander v. Bennett, (1875) 60 N. Y. 204, reversing 38 N. Y. Sup. Ct. 492; Bell v. Niewahner, (1900) 54 App. Div. 530, 66 N. Y. S. 1096. Nor can that jurisdiction be limited by any power conferred by the legislature upon the court itself. People v. Nichols, (1880) 79 N. Y. 582, reversing 18 Hun 530; De Hart v. Hatch, (1875) 3 Hun 375. Thus, chapter 299 of the Laws of 1872, and chapter 545 of the Laws of 1874, providing that any court of record may, by an order to be entered on its minutes after the joining of issue, transfer actions pending therein, of the classes therein specified, to the Marine Court for trial, are unconstitutional and void. De Hart v. Hatch, (1875) 3 Hun 375. In the case last cited, this was said: "If the legislature can declare that the court shall have no jurisdiction over one class of cases, it may do so as to all, and in that way the provision contained in the constitution could be completely abrogated. A law of that description would hardly be claimed to be capable of being sustained; and yet the difference between such legislation and that embodied in the acts of 1872 and 1874, is neither substantial nor real. If the legislature cannot restrict the jurisdiction of the court, its inability results from the positive declaration contained in the constitution, as to what its attributes and character shall continue to be; and that will prevent the same thing from being done by the combined action of the legislature and the court together. The court has no legislative authority, and no power to decline or refuse the jurisdiction provided for it by the constitution. If it had, it might impair and abridge its jurisdiction so far as to render the tribunal comparatively useless, which, the constitution has declared, shall be the most comprehensive in the state. Upon this subject, neither the court nor the legislature has any power of election whatever. The court exists solely under the constitution, and while it does so, it must be what that instrument has declared it shall be: a court of general jurisdiction in law and equity. And that includes the authority, as well as the duty, of hearing and deciding all actions of a legal or equitable nature; for the term, general, includes all. The nature of the provision made by the legislature, is not changed by the circumstance that the election of the authority to transfer its causes, has been, in terms, given to the court. For the constitution has not rendered the jurisdiction subject to any such election; and, as the legislature has no power by a direct act to restrict that jurisdiction, it cannot empower the court to do what it is without authority to do itself. Before the power can be delegated, authority must be found warranting the delegation of it. The court has not, and cannot have, any choice to exercise upon this subject. If it had, then it could hold that it would not be a court of general jurisdiction, although the constitution has declared that it shall be. If the court could do that, it could abrogate the provision made for its own existence. The existence of such authority anywhere, must be plainly incompatible with the positive declaration contained in the constitution. In the nature of things, both cannot coexist. That an abridgment of the jurisdiction of the court will be produced by sending causes at issue in it to another court for trial, can scarcely admit of a doubt. The act itself is equivalent to a refusal to hear and determine the cases which may be transferred. It must necessarily place them beyond the authority of the court making the transfer. To that extent, it involves a complete surrender or restriction of its own constitutional

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