authority; for, after that, the court must cease to be a court having jurisdiction to hear and decide the cases transferred to another tribunal. If the transfer could be lawfully made, the performance of that act would place the causes affected by it, beyond its authority and out of its jurisdiction. As to them, it would no longer be what the constitution has declared it shall be: a court of general jurisdiction in law and equity. Whether such authority be exercised positively by the legislature, or by the court acting by its permission, the effect must be the same. For, so far as it may be resorted to, it must deprive the court of all jurisdiction over the cases transferred to another tribunal by means of it, and that, the constitution has not permitted to be done."

66

Grant of general jurisdiction to tribunals other than Supreme Court.This section does not prohibit the legislature from giving general jurisdiction to other tribunals. In re Stilwell, (1893) 139 N. Y. 337, 34 N. E. 777, affirming 68 Hun 406, 23 N. Y. S. 65; People v. Green, (1874) 58 N. Y. 295, reversing 5 Daly 254. The general jurisdiction conferred upon the Supreme Court by the constitution does not operate to prevent the legislature from giving additional jurisdiction to other tribunals, or from changing the common law, or from regulating and altering the jurisdiction and proceedings in law and equity in the same manner and to the same extent as had been exercised by it before the constitution of 1846 was adopted." In re Stilwell, (1893) 139 N. Y. 337, 34 N. E. 777, affirming 68 Hun 406, 23 N. Y. S. 65. However, it seems to be well settled that general jurisdiction territorially coextensive with that of the Supreme Court cannot be conferred on other tribunals. 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; People v. Green, (1874) 58 N. Y. 295, reversing 5 Daly 254. See also Sill v. Corning, (1857) 15 N. Y. 297; 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.

Conferment of exclusive jurisdiction on courts of one district.- Section 1103 of chapter 410 of the Laws of 1882 (the New York City Consolidation Act), which provides that "the Supreme Court in the first judicial district, the Court of Common Pleas and the Superior Court, shall have exclusive jurisdiction of all actions or special proceedings wherein the mayor, aldermen and commonalty thereof are made a party defendant,” is pro tanto unconstitutional as attempting to limit the jurisdiction of the Supreme Court over parties and subject-matter. 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. Compare Brooklyn v. New York, (1881) 25 Hun 612. It is, however, valid in so far as it makes actions against the municipality local and fixes their place of trial. Getman v. New York, (1892) 66 Hun, 236, 21 N. Y. S. 116. See also Brooklyn v. New York, (1881) 25 Hun 612.

Inhibition of change of venue. Among the powers that have been exercised by courts of general jurisdiction from time immemorial has been the power to change in furtherance of justice the place of trial of an action not involving real property. Bell v. Niewahner, (1900) 54 App. Div. 530, 66 N. Y. S. 1096; Mussen v. Ausable Granite Works, (1892) 63 Hun 367, 18 N. Y. S. 267. Accordingly, any attempt to strip the Supreme Court of this power over venue is in violation of this section of the Constitution. Bell v. Niewahner, (1900) 54 App. Div. 530, 66 N. Y. S. 1096; 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. Thus, the clause, "if laid in such county, it shall not be changed for any cause," contained in section 29 of the Domestic Commerce Law (Laws of 1896, ch. 376), relating to actions for penalties imposed for use of milk cans in violation of that section and providing that "such action may be brought in a court of record having jurisdiction thereof, and the place of trial thereof may be laid in the county where such owner, dealer or shipper

resides at the time of the commencement thereof, and, if laid in such county, it shall not be changed for any cause," is unconstitutional. Bell v. Niewahner, (1900) 54 App. Div. 530, 66 N. Y. S. 1096.

Scope of power of Supreme Court over remedies.-"The Supreme Court of this state has original and general jurisdiction of all cases in law and equity (Const., art. 6), with unlimited power to protect the rights of persons and property by adopting and enforcing all of the remedies afforded by an enlightened jurisprudence which are not inconsistent with the constitution of the state, and it is its privilege and duty to mould and expand its processes so as to afford adequate protection to the rights of all citizens." Thus, the Supreme Court has power to restrain by injunction the carrying out of a conspiracy to destroy or injure property. Davis v. Zimmerman, (1895) 91 Hun 489, 36 N. Y. S. 303.

Jurisdiction of Supreme Court as limited by Code of Civil Procedure.While the Supreme Court has general jurisdiction in law and equity, the exercise thereof is subject to the limitations and regulations of the Code of Civil Procedure. Thus, when a person commences an action, the power of the court, which he invokes and is entitled to have exercised in his behalf, is that only which applies to the cause of action which he states in the complaint, and it is by this pleading that the scope of the power of the court in that action is to be determined. "If a woman should sue her husband upon a promissory note, and upon default of answer the court should grant her a divorce, no one would claim that such a judgment had any force or validity, and yet it could be argued that the court had jurisdiction of divorces and the judgment was within its general powers. But the answer to such an argument would be that the power of the court to grant a divorce had not been called into action and no case had been presented in which it could lawfully be exercised, and the judgment of divorce would be absolutely void. The result would be the same if, in an action upon a note, a judgment was rendered foreclosing a mortgage. The rule could not be otherwise without violating the constitutional provision declaring that no person shall be deprived of life, liberty or property without due process of law. That provision cannot be complied with unless the party proceeded against has a hearing or an opportunity to be heard." Clapp v. McCabe, (1895) 84 Hun 379, 32 N. Y. S. 425, affirmed 155 N. Y. 525, 50 N. E. 274.

Methods of procedure in the Supreme Court are subject to legislative control. Where the legislature has neglected to act in prescribing modes of procedure, parties are relegated to the former practices of the court. Matter of Pye, (1897) 21 App. Div. 266, 47 N. Y. S. 689.

Power of court to provide for appeal. A court cannot provide for an appeal. That is a matter entirely within the power and control of the legislature. People v. Trezza. (1891) 128 N. Y. 529, 28 N. E. 533; Leach v. Auwell, (1912) 154 App. Div. 170, 138 N. Y. S. 975.

Imposition of administrative duties on court. The performance of administrative duties cannot be imposed by the legislature upon the Supreme Court, as such, except as to matters incidental to the exercise of judicial powers. In re Davies, (1901) 168 N. Y. 89, 61 N. E. 118, 56 L. R. A. 855, reversing 55 App. Div. 245, 67 N. Y. S. 492. The duties imposed upon justices of the Supreme Court by the provisions of the Anti-Monopoly Act (Laws 1899, ch. 690), requiring any such justice upon application by the attorney-general to grant an order for the examination before the justice or a referee appointed by him of a person whose testimony is by the attorney-general deemed material and necessary to prepare his complaint or prepare for trial of an action about to be instituted by him under the act, are judicial in character because they are incidental to a judicial proceeding; they are judicial in form, because, although the language used is mandatory on its face, a justice is not required to grant the order as a matter of course, but must exercise the judicial function of deciding whether the application makes out a case pursuant to the statute and authorizes the order according to its provisions: they are

judicial in substance and have a judicial purpose to accomplish, because the object of the act is to " secure testimony " in relation to violations thereof, and while the testimony can only be used by the attorney-general to prepare his complaint or to prepare for trial, either use is a judicial purpose incidental to a judicial proceeding about to be instituted thereunder and within the power of the legislature to intrust to the Supreme Court or its judges. In re Davies, (1901) 168 N. Y. 89, 61 N. E. 118, 56 L. R. A. 855, reversing 55 App. Div. 245, 67 N. Y. S. 492.

Exercise of administrative functions by judge. For many years, and without serious question, acts have been passed conferring upon the justices of the Supreme Court authority, out of term, to perform a variety of functions, administrative or semi-administrative in character, such as the approval of certificates of incorporation, the acknowledgment of conveyances, the solemnization of marriages, the appointment of commissioners of jurors, the investigation of the financial affairs of villages and the like. A distinction seems to prevail in practice between powers conferred upon a court and those conferred upon the judges thereof. In re Davies, (1901) 168 N. Y. 89, 61 N. E. 118, 56 L. R. A. S55, reversing 55 App. Div. 245, 67 N. Y. S. 492.

Power "at chambers" of Supreme Court justice. As a part of the jurisdiction" of a court of equity was "to exercise its powers at all times, although it also had stated terms," this jurisdiction devolved upon the Supreme Court under this section, "until it should be altered pursuant to the power vested in the legislature, 'to alter and regulate the jurisdiction and proceedings in law and equity.' (Art. 6, § 3.) Therefore, in matters of equitable cognizance, the justices of the Supreme Court were authorized to exercise the same powers at chambers which formerly the chancellor could rightfully exercise out of term. Accordingly, where a justice of the Supreme Court, on petition praying that the custody and care of a minor child be surrendered by its general guardian to its mother, heard the matter at his chambers during vacation, and adjudged that the prayer of the petition ought to be granted, and made an order accordingly, the order was regular and valid. Wilcox v. Wilcox, (1856) 14 N. Y. 575.

Lunatics and incompetent persons.- "The Supreme Court, as a court of general jurisdiction at law and in equity, possesses inherent powers, among which is the care, custody and control of incompetents." Moore v. Flagg, (1910) 137 App. Div. 338, 122 N. Y. S. 174. To the same effect In re Andrews, (1908) 192 N. Y. 514, 85 N. E. 699, reversing 125 App. Div. 457, 109 N. Y. S. 831; Wilcox v. Wilcox, (1856) 14 N. Y. 575; Butler v. Jarvis, (1889) 51 Hun 248, 4 N. Y. S. 137; People v. Corey, (1887) 46 Hun 408, 12 N. Y. St. Rep. 411; In re King, (1886) 42 Hun 607, 4 N. Y. St. Rep. 570. Thus, the Supreme Court, by virtue of its inherent jurisdiction over the persons and estates of incompetents, may appoint a guardian ad litem for one adjudged to be a habitual drunkard in order that he may sue in equity to set aside a note alleged to have been procured from the incompetent by one occupying a fiduciary relation, and to vacate a judgment taken by default in an action on the note, if no committee of the property of the incompetent has been appointed, but merely a committee of his person. Moore v. Flagg, (1910) 137 App. Div. 338, 122 N. Y. S. 174. This section " preserves the jurisdiction over lunatics and their property which was originally vested in the chancellor and Court of Chancery and was subsequently transferred to the old Supreme Court, as it existed prior to the adoption of the constitution of 1846.” In re Andrews, (1908) 192 N. Y. 514, 85 N. E. 699, reversing 125 App. Div. 457, 109 N. Y. S. 831. To the same effect Butler v. Jarvis, (1889) 51 Hun 248. The Supreme Court, under its "general jurisdiction in law and equity," has full authority with relation to the care, custody and control of infants. Wilcox v. Wilcox, (1856) 14 N. Y. 575; People v. Corey, (1887) 46 Hun 408, 12 N. Y. St. Rep. 411; In re King, (1886) 42 Hun 607, 4 N. Y. St. Rep. 570. Thus, the Supreme Court has jurisdiction

and authority to take a minor child from a guardian appointed by the surrogate on the death of its father, and deliver it to the care and custody of its mother, where this is for the advantage of the child. Wilcox v. Wilcox, (1856) 14 N. Y. 575.

Abrogation by Supreme Court of rules of state hospital. The Supreme Court has no jurisdiction to order that a person committed to a state hospital for the insane may have interviews with attorneys and relatives in private contrary to a rule of said institution adopted pursuant to statutory authority providing that such interviews must be in the presence of assistants or attendants of the institution. Matter of Thaw, (1913) 158 App.

Div. 571, 143 N. Y. S. 854.

66

Appointment of referee to sell. The authority of the court to appoint referees to sell was no part of the former jurisdiction either of the Supreme Court or of the Court of Chancery," but appears "to have been derived from section 77 of the Judiciary Act of 1847 (ch. 280)." Accordingly, chapter 167 of the Laws of 1889, amending chapter 439 of the Laws of 1876, and requiring sales of real estate in Kings county under judgment or decree to be made by the sheriff, except in cases therein specified, does not con. stitute an unconstitutional limitation on the jurisdiction of the Supreme Court continued by this section. Sproule v. Davies, (1902) 171 N. Y. 277, 63 N. E. 1106, affirming 69 App. Div. 502, 75 N. Y. S. 229. The above statement, however, "does not apply to the appointment of referees to hear and determine actions." Sproule v. Davies, supra. The court said: 66 Referees to sell are administrative officers rather than judicial, except in the broad sense of the latter term as including all matters connected with the administration of justice or the action of the courts."

Appointment of receiver of corporation property." The power to appoint a receiver of the property of a corporation is inherent in the Supreme Court." Popper v. Order of Chosen Friends, (1901) 61 App. Div. 405, 70 N. Ÿ. S. 637. See also Hegewisch v. Silver, (1893) 140 N. Y. 414, 35 N. E. 658.

Specific performance.- As "the present Supreme Court possesses the jurisdiction formerly exercised by the Court of Chancery," it may compel the specific performance, by a resident of this state, of a contract for the conveyance of land lying without its jurisdiction. Newton v. Bronson, (1856)

13 N. Y. 587, 67 Am. Dec. 89.

"While

The Appellate Division is a part of the Supreme Court. Waldo v. Schmidt, (1910) 200 N. Y. 199, 93 N. E. 477, reversing 139 App. Div. 589, 124 N. Y. S. 189; Matter of Pye, (1897) 21 App. Div. 266, 47 N. Y. S. 689. there is but one Supreme Court in theory and in fact, it is divided into separate parts, which exercise distinct and dissimilar functions. venience and brevity these parts are spoken of both colloquially and in the statutes as courts, and such they are in fact, although all included under the generic title of the Supreme Court." Waldo v. Schmidt, supra.

2. Judicial departments.

Appellate division.

For con

Expedition of business; transfer of appeals to other department.

Powers and duties of justices.

Jurisdiction.

Reporter.

Appellate division justices to fix special terms.

The Legislature shall divide the State into four judicial departments. The first department shall consist of the county of New

York; the others shall be bounded by county lines and be compact and equal in population as nearly as may be. Once every ten years the Legislature may alter the judicial departments, but without increasing the number thereof. There shall be an Appellate Division of the Supreme Court, consisting of seven justices in the first department, and of five justices in each of the other departments. In each department four shall constitute a quorum, and the concurrence of three shall be necessary to a decision. No more than five justices shall sit in any case. From all the justices elected to the Supreme Court the Governor shall designate those who shall constitute the Appellate Division in each department; and he shall designate the presiding justice thereof, who shall act as such during his term of office, and shall be a resident of the department. The other justices shall be designated for terms of five years or the unexpired portions of their respective terms of office, if less than five years. From time to time as the terms of such designations expire, or vacancies occur, he shall make new designations. A majority of the justices so designated to sit in the Appellate Division, in each department shall be residents of the department. He may also make temporary designations in case of the absence or inability to act of any justice in the Appellate Division, or in case the presiding justice of any Appellate Division shall certifiy to him that one 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 majority 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