and granting a new trial, stated that the reversal and new trial were allowed solely on certain specified issues of law but failed to show that the questions of fact relative to those issues had been examined and affirmed, that order is not appealable to the Court of Appeals even though it is further stated that the other questions of fact involved had been examined and affirmed. Aldring v. New York Cent., etc., R. Co., (1901) 166 N. Y. 287, 59 N. E. 990, dismissing appeal 46 App. Div. 460, 61 N. Y. S. 763.

IV. APPEAL BY PERMISSION.

Force of provision. The provision that the Appellate Division may allow appeals upon questions of law is broad and complete enough without the aid of supplementary statutory enactments to secure the right of appeal by permission. Wherefore, in the absence of a statute so providing, the Appellate Division may allow appeals from its decision on question of law arising in a case that originated in an inferior court. People v. Ekerold, (1914) 211 N. Y. 386, 105 N. E. 670, L. R. A. 1915D 223, Ann. Cas. 1915C 552, affirming 160 App. Div. 930, 145 N. Y. S. 1137.

Applicability to criminal case.— This provision applies to criminal as well as to civil cases. People v. Ekerold, (1914) 211 N. Y. 386, 105 N. E. 670, L. R. A. 1915D 223, Ann. Cas. 1915C 552, affirming 160 App. Div. 930, 145 N. Y. S. 1137. See also People v. Johnston, (1907) 187 N. Y. 319, 79 N. E. 1018, dismissing appeal 112 App. Div. 812, 99 N. Y. S. 411.

Necessity of allowance in cases not appealable as of right.- Until an allowance is obtained from the Appellate Division, no right of appeal exists save in the specified cases and any proceedings in the nature of an appeal taken before the right comes into existence are nugatory. Proceedings so taken are not cured by the subsequent allowance of an appeal by the Appellate Division. Steamship Richmond Hill v. Seager, (1899) 160 N. Y. 312, 54 N. E. 574.

Necessity of certification of specific question. There is no necessity for formulating and certifying a specific question of law to the Court of Appeals on the allowance of an appeal. People v. Ekerold, (1914) 211 N. Y. 386, 105 N. E. 670, L. R. A. 1915D 223, Ann. Cas. 1915C 552, affirming 160 App. Div. 930, 145 N. Y. S. 1137. See also Klein v. East River Electric Light Co., (1905) 182 N. Y. 27, 75 N. E. 1130, reversing 90 App. Div. 92, 86 N. Y. S. 164.

Grant of appeal on question of fact.— The Appellate Division is competent to allow appeals to the Court of Appeals only on questions of law and it has no power to allow such appeals on questions of fact. In re Westerfield, (1900) 163 N. Y. 209, 57 N. E. 403, dismissing appeal, 48 App. Div. 542, 63 N. Y. S. 10; Beekman v. Third Avenue R. Co., (1897) 153 N. Y. 144, 47 N. E. 277, affirming 13 App. Div. 279, 43 N. Y. S. 174. Accordingly, where, after reversing a surrogate's degree upon questions of fact as well as of law, an Appellate Division certifies to the Court of Appeals certain questions whose answers depend upon the facts established by the evidence from which different inferences may be drawn, the Court of Appeals cannot answer the question certified. Matter of Westerfield, supra.

Allowance of review of unanimous decision as to presence of supporting evidence.- The grant to the Appellate Division of the authority to allow appeals was not intended to nullify or affect the provision which prevents the Court of Appeals from reviewing any unanimous decision of the Appellate Division that there is evidence sufficient to sustain a finding of fact or undirected verdict. The Appellate Division is not, therefore, competent to authorize a review of its unanimous decision in that particular. Reed v. McCord, (1899) 160 N. Y. 330, 54 N. E. 737, affirming 18 App. Div. 381, 46 N. Y. S. 407.

Judges not to Hold Office

66

Art. VI, § 10

Waiver of constitutional condition to appeal as of right.- The provision permitting the Appellate Division to allow appeals was intended to apply to cases where the appeal is not given as matter of right. That court has no power to allow an appeal given as matter of right upon certain conditions and to dispense with the conditions prescribed. Thus, the Appellate Division cannot, in allowing an appeal from an order granting a new trial on exceptions, dispense with the necessity of a stipulation for judgment absolute on affirmance. When the whole section is read together, the meaning is that in those cases where a party is not permitted to appeal to this court as matter of right he may procure an allowance of the appeal from the appellate division. But it does not permit an appeal to this court from an order granting a new trial, except upon the condition specified in the section; that is to say, a stipulation for judgment absolute. The construction which the learned counsel for the defendant has put upon the provision empowering the appellate division to allow appeals would enable the courts below to dispense with the necessity for a stipulation for judgment absolute in all cases where an order granting a new trial is sought to be reviewed. In other words, it would make the right of appeal from that class of orders depend not upon the condition which the constitution prescribes, that is to say, a stipulation for judgment absolute, but upon the views of the appellate divisions in every part of the state with respect to the question whether there was involved in the case a question of law which ought to be reviewed." Mundt v. Glockner, (1899) 160 N. Y. 571, 55 N. E. 297, dismissing appeal 24 App. Div. 110, 48 N. Y. S. 940.

§ 10. Judges not to hold other office.

The Judges of the Court of Appeals and the Justices of the Supreme Court shall not hold any other office or public trust. All votes for any of them, for any other than a judicial office, given by the Legislature or the people, shall be 'void.

Const. 1777, Art. XXV; amended, Const. 1821, Art. V, § 7; amended, Const. 1846, Art. VI, § 8; amended, Judiciary Article, 1869, Art. VI, § 10.

Scope. This section has reference to judges and justices as individuals and does not apply to the courts of which they are officers. Accordingly, a statute (Laws of 1816, p. 115, § 2) is not objectionable under this section in conferring upon the Supreme Court the power to appoint commissioners of estimate and assessment and to confirm their report. That statute vests the authority to appoint and to confirm in the court and not in the individuals who might from time to time be judges thereof. Striker v. Kelly, (1845) 2 Denio 323, reversing 7 Hill 9.

Meaning of office." Office has been defined to be " an employment on behalf of the government in any station or public trust not merely transient, occasional, or incidental.'” It follows that this section does not prohibit the exercise by justices of a function which is "merely transient, occasional or incidental." Per Peckham, J., in People v. Nichols, (1873) 52 N. Y. 478, 11 Am. Rep. 734; People v. Bard, (1913) 209 N. Y. 304, 103 N. E. 140, affirming 157 App. Div. 943, 142 N. Y. S. 1170. See also In re Hathaway, (1877) 71 N. Y. 238, affirming 9 Hun 79. Thus, a judge of the Court of Appeals may properly be empowered to pass upon the genuineness of certain relics of General Washington, with a view to their purchase by the state. People v. Nichols, supra.

Position of commissioner of appraisal as public trust. The office of com. missioner to assess the compensation to be allowed for private property appropriated under the right of eminent domain is a position of public trust and

Art. VI, § 10

Judges not to Hold Office

hence one which a justice of the Supreme Court is debarred from holding. Matter of Gilroy, (1896) 11 App. Div. 65, 42 N. Y. S. 640.

Power to determine validity of proceedings preliminary to bond issue.— Section 26 of article 2A of the general Municipal Law (Laws of 1909, ch. 29, and Laws of 1911, ch. 769) empowering the Supreme Court to determine the validity of proceedings taken by a municipal corporation prior to the issue of certain bonds and providing that those proceedings shall be deemed legalized and confirmed if the court determines that they are valid, confers no legislative powers on the court and is not in violation of this section. The determination of the validity of the proceedings is a judicial function and obviously the bonds derive validity from the legislative enactment, not from the conclusion of the court. Matter of Lackawanna, (1913) 158 App. Div. 263, 143 N. Y. S. 198.

Exercise of power connected with judicial purpose.- A public trust may be conferred on a judge of the Court of Appeals or on a justice of the Supreme Court if it has some reasonable connection with a judicial purpose. People v. Bard, (1913) 209 N. Y. 304, 103 N. E. 140, affirming 157 App. Div. 943, 143 N. Y. S. 1140; People v. Hall, (1901) 169 N. Y. 184, 62 N. E. 170; Daily Register Printing Co. v. New York, (1889) 52 Hun 542. See also 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; Citizens' Sav. Bank v. Greenburgh, (1903) 173 N. Y. 215, 65 N. E. 978, reversing 60 App. Div. 225, 70 N. Y. S. 68. Thus, the power to appoint a special jury commissioner is a public trust. But being germane to the selection of proper jurors to aid in the administration of justice, that power pertains to a judicial function and may therefore be delegated to a justice of the Supreme Court. "The right of the jury to decide all issues of fact presented to the court at which they attend, makes their selection a judicial purpose of the highest importance. It is an invaluable aid to the discharge of judicial duties, and hence may be attached by the legislature to the judicial office, as incidental to the exercise of the usual powers of that office. The appointment of a jury commissioner rests on the same principle as that of stenographers, judges' clerks and the like. The appointment of such officers is authorized because the discharge of their duties aids the judges in the performance of their judicial functions; and so the appointment of a special jury commissioner to select jurors aids the judges in transacting the usual business of their courts.” People v. Hall, (1901) 169 N. Y. 184, 62 N. E. 170. Similarly, the legislature is competent to enact a statute (Military Law, § 115; Consol. Laws, ch. 36) providing that "in case of any breach of the peace, tumult, riot or resistance to process of the state, or imminent danger thereof, a justice of the supreme court,

may call for aid upon the commanding officer of national guard or naval militia." In acting under the statute, a judge necessarily exercises a judicial function for the duty rests upon him to decide whether or not there exist breaches of the peace, tumults, or riots warranting an appeal to the national guard or naval militia. His administrative aid of calling upon a commanding officer has, therefore, a reasonable connection with the exercise of a judicial power. People v. Bard, (1913) 209 N. Y. 304, 103 N. E. 140, affirming 157 App. Div. 943, 142 N. Y. S. 1140. And the duty imposed by chapter 656, Laws of 1874, upon the presiding justice of the Supreme Court of designating a law journal in which the calendars of the court shall be published, is nothing more than an additional duty attached to the judicial office, and is not violative of the prohibition of this section. "The designation of the journal is, primarily, for the thorough dissemination of the court calendars. This is important in securing preparation for trial and prompt attendance upon the call of the calendars. It would certainly be a very narrow and strained construction of the constitution to hold that a duty having such results for its object, was foreign to the judicial office." Daily Register Printing Co. v. New York, (1889) 52 Hun 542, 6 N. Y. S. 10.

Removal, Retirement, and Compensation of Judges Art. VI, §§ 11, 12

§ 11. Removal of judges.

Judges of the Court of Appeals and Justices of the Supreme Court may be removed by concurrent resolution of both houses of the Legislature, if two-thirds of all the members elected to each house concur therein. All other judicial officers, except justices of the peace and judges or justices of inferior courts not of record, may be removed by the Senate, on the recommendation of the Governor, if two-thirds of all the members elected to the Senate concur therein. But no officer shall be removed by virtue of this section except for cause, which shall be entered on the journals, nor unless he shall have been served with a statement of the cause alleged, and shall have had an opportunity to be heard. On the question of removal, the yeas and nays shall be entered on the journal.

Const. 1846, Art. VI, § 11; amended, Judiciary Article, 1869, Art. VI, § 11; amended, Const. 1894, Art. VI, § 11. See also Const. 1821, Art. I, § 13; amendment of 1845.

Members of Court of Claims as "other judicial officers."- Since the provisions of the Constitution respecting the higher courts whose jurisdiction pervades the entire state are exclusive, and since, therefore, no other court of such jurisdiction can be added by the legislature (see Art. 6, § 1), the Court of Claims, created by chapter 36, Laws of 1897, and invested with general power to audit and determine private claims, is an auditing or quasijudicial body and not a court within the strict meaning of that term. Its members are not "other judicial officers" under that term as here used, but may be removed at the discretion of the legislature. Wherefore, chapter 856, Laws of 1911, abolishing the Court of Claims and establishing in the place thereof the board of claims, is valid, although that act shortened the term of the members of the court holding office at the time of its passage. People v. Luce, (1912) 204 N. Y. 478, 97 N. E. 850, Ann. Cas. 1913C 1151, affirming 74 Misc. 551, 133 N. Y. S. 9.

§ 12. Age limit of judges.

Compensation of supreme court justices.

No person shall hold the office of Judge or Justice of any court longer than until and including the last day of December next after he shall be seventy years of age. Each Justice of the Supreme Court shall receive from the State the sum of ten thousand dollars per year. Those assigned to the Appellate Divisions in the third and fourth departments shall each receive in addition the sum of two thousand dollars, and the Presiding Justices thereof the sum of two thousand five hundred dollars per year. Those Justices elected in the first and second judicial departments shall continue to receive from their respective cities, counties or districts, as now provided by law, such additional compensation as

Art. VI, § 12 Retirement and Compensation of Judges

will make their aggregate compensation what they are now receiving. Those Justices elected in any judicial department other than the first or second, and assigned to the Appellate Divisions of the first or second departments shall, while so assigned, receive from those departments respectively, as now provided by law, such additional sum as is paid to the Justices of those departments. A Justice elected in the third or fourth department assigned by the Appellate Division or designated by the Governor to hold a trial or special term in a judicial district other than that in which he is elected shall receive in addition ten dollars per day for expenses while actually so engaged in holding such term, which shall be paid by the State and charged upon the judicial district where the service is rendered. The compensation herein provided shall be in lieu of and shall exclude all other compensation and allowance to said Justices for expenses of every kind and nature whatsoever. The provisions of this section shall apply to the Judges and Justices now in office and to those hereafter elected.

Const. 1846, Art. VI, § 7; amended, Judiciary Article, 1869, Art. VI, §§ 13, 14; amended in 1880, § 13; amended, Const. 1894, Art. VI, § 12; amended in 1909. See also Const. 1777, Art. XXIV.

Retrospective effect of section. This section is not retroactive in its effect. It "only condemns subsequent legislation that may offend any of its provisions." People v. Fitch, (1895) 145 N. Y. 261, 39 N. E. 972.

Age restriction clause generally. The age limitation established by this section of the Constitution does not apply to every person who is invested with judicial power. It is the "office of judge or justice of any court" which this clause declares shall not be held by any person "longer than until and including the last day of December next after he shall be seventy years of age." People v. Mann, (1885) 97 N. Y. 530, 49 Am. Rep. 556, reversing 32 Hun 440. In that case the court said: "The judicial function may be vested in a person, to be exercised for certain purposes and on particular occasions, who does not hold the 'office of justice or judge of any court,' within the meaning of this clause. The constitution itself furnishes one illustration. The president of the senate, the senators and the judges of the court of appeals, comprise the court for the trial of impeachments, created by the first section of the sixth article. But neither the lieutenant-governor, nor the senators, although they act as judges on the trial of an impeachment, 'hold the office of justice or judge of any court.' The office which the lieutenant-governor holds is that indicated by his title, and so of the senators. The judicial function which they exercise in the particular case is annexed to their respective offices. They sit as judges on the trial of impeachments, but they do not hold the office of judges while acting as such. We think it plain that they would not be disqualified from acting as members of the court after attaining the age of seventy years, under the clause in the constitution now in question. Another illustration is furnished in the statutes creating mayor's courts in cities, by which judicial powers are vested for certain limited purposes in mayors, and other municipal officers. There is such a court in the city of Hudson, and it may be in other cities, which is held by the mayor, or by the mayor in conjunction with other officers. The