
    LEWIS ALEXANDER, Plaintiff and Respondent, v. JACOB BENNETT, Defendant and Appellant.
    Before Monell, Ch. J., Curtis, Sedgwick, Van Vorst, and Speir, JJ.
    
      Decided Jan. 11, 1874.
    I. CONSTITUTIONAL LAW.
    1. Marine court act of 1874, the fourth, section relating to the transfer-of causes to the marine court, is constitutional,
    
    
      a Power of the legislature to pass acts authorizing the transfer of causes from one court to another, and affecting remedies-discussed.
    II. Order op removal made under said act oe 1874.
    1. It is final, and can not be reviewed on appeal.
    
      a. The case of Morehouse ®. Yeager, ante, 50, cited and followed.
    Appeal from an order directing the removal of this-action from this court, for trial, in the marine court of" the city of New York. Heard at the November general term, 1874, before all the judges, except Judge Freedman, from whose order the appeal was taken.
    The action was for the recovery of the sum of two thousand seven hundred dollars, the balance unpaid. of a loan from the plaintiff to the defendant of four-thousand five hundred dollars.
    The answer was a general denial, and a counterclaim of three hundred dollars.
    Upon the following affidavit, and upon the motion of the plaintiff, and after hearing counsel for the defendant, the court made an order, removing the action from this court into the marine court.
    “City and county of New York, ss.: Matthew P. Breen being duly sworn, says he is one of the attorneys for the plaintiff in above entitled action. That this action is brought to recover for moneys loaned and deposited by the plaintiff with defendant. That issue was joined herein by the service of tile-plaintiff’s reply to counter-claim of defendant on August 26, 1874, and deponent says that, he would have brought this suit in one of the inferior courts of' jurisdiction in this suit, could he have done so, as the plaintiff is anxious to have a speedy trial thereof. That plaintiff will suffer great inconvenience and loss if he is-obliged to wait for the trial of this action brought regularly on in its order on the calendar of this court, wherefore deponent prays for its removal to the marine-court of the city of New York.”
    The defendant appealed.
    
      Sullivan, Kobbie, & Fowler, attorneys, and Algernon S. Sullivan, of counsel for appellant,
    urged;—1_ The order appealed from was made under sec. 4, chap. 545, of the 97th Session Laws of New York,, entitled “An act in relation to the marine court of the city of New York,” passed May 22,1874. This section of the act is unconstitutional. The superior court of the-city of New York (the court of common pleas, and two-other local courts) are continued, with the powers they then had in the state constitution of 1870. The language of section 12, of art. 6, of that constitution is,. that such courts “ are continued with the powers and jurisdiction they now severally have, and such further civil and criminal jurisdiction as may be conferred by law.” If this language means anything, it means that so long as this constitutional renomination of this court stands, that its jurisdiction shall remain unabridged, and the legislature has no right to abridge it. The mode of appeal before the constitution of 1870 was thus: an appeal from an order made at special term, would, in certain cases (of which this is one), lie to the general term of this court. By the constitution of 1870, therefore, this method of practice was confirmed, viz., that all appeals should be from the special term of this court to the general term, and thence to the court of appeals (Code of Pro. § 348). Chapter 545 then abridges this right of appeal to the general term of this court, which right was fixed by the service of summons and appearance in this court. The appellant insists that the suitor can not be deprived of such right without his consent, in the absence of a constitutional amendment. If the case at bar is sent to the marine court, it becomes discretionary in the general term of the court of common pleas, as to the right of appeal to the court of appeals from a judgment of such court. And yet a judgment in the marine court in this cause would be a judgment in a suit over which this court alone has exclusive and entire jurisdiction. After process has been served in this court, the legislature has no power to pass a statute abridging the jurisdiction of this court to the prejudice of suitors summoned to the forum of this court. The legislature may extend this court’s jurisdiction, but can not deprive suitors of the right to travel directly to the court of appeals, according to the way pointed out by law prior to the constitution of 1870, and confirmed by such constitution. Chapter 545 does deprive suitors of such right, and, therefore, abridges the jurisdiction of this court, and is in this respect unconstitutional.
    II. Chapter 545 is a local bill, “in relation to the "marine court of the city of New York.” Section 16 of art, 3, Constitution of New York, 1846, reads: “No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.” Local statutes are those whose operations are intended, to be restricted within certain limits (Dwarris on Stat. 384; 1 W. Blacks. 246 ; Williams v. The People, 24 N. Y. 407). “The provisions of an act in relation to police justices may be considered local.” Thus overruling matter of Wakker (1 Edm. 575). “ An act in relation to fees of the sheriff, and to the fees of referees, is a local act, embracing more than one subject” (Gaskin v. Meek, 42 N. Y. R. 186 ; Vide 38 N. Y. 193, The People of the State of New York v. O’Brien; Also 49 N. Y. 132, Huber v. The People of the State of New York). Chapter 545 is evidently in conflict with this section of the •constitution, for, being a local bill, it proposes to alter the whole system of practice on appeals, in so far as the cases sent from other courts are concerned.
    III. That the interpretation of chapter 545 should ■foe construed in furtherance of justice. An interpretation which leads to the forfeiture of the right of appeal should not be favored (Pearson v. Lovejoy, 53 Barb. 407; 35 How. Pr. 193). An interpretation of chapter 545, which permits the common pleas to determine the propriety of appeals in cases begun in the .superior court is great injustice to suitors.
    
      Breen & Gearon, attorneys, and Matthew P. Breen, of counsel for respondent,
    urged;—I. The order appealed from was made in pursuance of chap. 545, Laws 1874.
    
      II. The order of special term should be affirmed with costs.
   By the Court.—Monell, Ch. J.

The legislature of 1874 (ch. 545, Laws of 1874) passed an act entitled “An act in relation to the marine court of the city of New York,” the fourth section of which is as follows : .

“ Any other court of record may, in its discretion, by an order to be entered on its minutes after the joining of issue, send any action pending therein, or that may hereafter be brought therein, to the said marine court for trial; and a certified copy of such order shall be delivered to and filed with the clerk of said marine1 court, and be entered by him on its minutes, and, thereupon, the said marine court shall have immediate1 and exclusive jurisdiction of such action as full and comprehensive in that particular as that of the court from whence the same proceeds.”

The power of an appellate court to review decisions.resting, in part or wholly, in the discretion of the court below, was at one time not supposed to exist. Such decisions were regarded as final, and could not be disturbed. But the Code has designated the orders which, may be appealed from. Among them are any which involve the merits of the action, or affect a substantial right (Code, § 349, subd. 3).

In a recent case in this court (Morehouse v. Yeager, ante, p. 50) we held, that it was immaterial whether the order was discretionary or otherwise, the test, and the only test, of its appealability being,, whether the merits of the action were involved, or a substantial right was affected.

The act referred to allows any court of record, in its = discretion, to remove a pending action into the marine court, and the question is, does the order making the removal affect a substantial right of the appellant %

Reasons for the judicious and wise use of discretionary power, are obvious. Such power is not and can not be governed by fixed or well defined rules or principles. It rests upon constitution, temper, and passion, and often upon caprice, and always must, or should, be directed by the peculiar facts and circumstances which call it into exercise. The judicial power, under the constitution and laws, is so great, that it may oppress as well as benefit. In protecting rights and redressing wrongs, it may be used benignly or to-the injury of suitors; and, therefore, the use of so-great a power should be regulated by wise and prudent counsels, and only in furtherance of justice.

As an original question, we should differ with the-learned judge who made the order. Ho sufficient reason, in our judgment, was furnished for transferring the action to another tribunal. There was no peculiarity in the cause of action which entitled it to a more speedy trial than the large body of similar actions at all times pending in the courts of, this city. And if there was reason to believe the defense was interposed for delay, the action could have been placed on the-special calender, under the rule of this court.

But we think the order final, unless the act authorizing the removal, is in conflict with some provision of' the constitution.

H o substantial right is affected. The action is merely transferred to another tribunal, presumedly as competent to administer justice as this court, and the parties, will have the same opportunities of a fair, impartial and intelligent hearing, as if they had remained here.

As, in a precisely analogous case, the question has-been determined by the court of appeals (Illius v. The N. Y. & New Haven Railroad Co., 13 N. Y. 597), it need not be further examined. That was an appeal from an order removing a cause from the state into the federal court; and it was held not to be appealable, on the ground that no substantial right was affected. The court say, “ Whatever ground of preference the plaintiff may have for one tribunal over another, the right supposed to be affected, must relate to the merits of the controversy in the court below, and these are, in theory at least, as safe in the federal as in the state courts.”

Does the act violate any provision of the constitution %

The first objection is, that the subject of the fourth section is not embraced in the title of the act. The title is, “An act in relation to the marine court of the city of New York,” and the subject of the section, or part of it, is authority to courts of record to transfer actions into that court. In the same section, however, and a necessary part of it, is the provision, that, upon such transfer, the marine court shall have immediate and exclusive jurisdiction of the action. The power or authority to remove, and the actual removal, were necessary to give that court jurisdiction, and it is a subject, therefore, “relating to the marine court.”

It is only necessary that the title express the subject of the act, and not the provisions of the act, or the details by which the objects of the act are to be accomplished (Sun Mutual Ins. Co. v. The Mayor, &c., of New York, 8 N. Y. 241; Brewster v. City of Syracuse, 19 Id. 116; People v. McCann, 16 Id. 58; People, ex rel. Crowell v. Lawrence, 41 Id. 137). No one can ■doubt that a provision for removing actions into the marine court, relates to that court; and the subject •could not be better or more clearly expressed, unless the provision and its details were included in the title, which is never required.

The subject is, therefore, sufficiently, expressed in the title.

But even if it was not so, the act can be upheld Tinder the authority of The People v. McCann (16 N. Y. 58). Assuming that the act is local, and that so much of it as relates to the removal of causes, is not sufficiently expressed in the title, it can be sustained on the ground that general provisions a,re. not void, by reason of being contained in the same act, with other provisions of merely local application. In that case, an act to enlarge the jurisdiction of the general and special sessions of Hew York contained general provisions applicable to all the courts of oyer and terminer in the State.

As the authority to remove causes into the marine court applies to all courts of record in the State, the provision, in one sense, is as general as in the case referred to, yet, upon the authority of that case, it can be upheld.

It is further objected that the act in effect invades the jurisdiction of this court, and by indirection deprives it of some of its constitutional powers.

It is quite true that the constitution (of 1870), in continuing this court with the powers and jurisdiction it then had, placed it beyond the reach of the legislature to diminish or abridge such powers and jurisdiction ; and, therefore, if an effect could be given to the act in question, which could deprive this court, without its consent, of any of its constitutional powers, it would be clearly void. But no such effect can be given to the act. It is permissive merely, and defers to the court itself, to determine whether it will or not deprive itself of jurisdiction. And it is only with the approbation and consent of the court, that the removal can be had..

Courts have always claimed the right, in certain cases, of assuming or declining jurisdiction (McIvor v. McCabe, 26 How. Pr. 257), but it can not be said that by declining jurisdiction in a particular case, which is merely the exercise of a discretionary power, they are deprived of jurisdiction in any other and similar case,, if in the latter they assume it.

The act, therefore, does not diminish, abridge, or deprive this court of any of its jurisdiction, but merely allows the court, in its discretion, to transfer actions pending in it do another tribunal. This is an increase and not a diminution of power.

The legislative power is vested in the senate and assembly, and, except as restricted or limited by the State or federal constitutions, is absolute.

In determining the validity of a legislative enactment, it is only necessary to look into the fundamental law, to see if the powers of the legislature have been exceeded; and if no limitation or restriction is found, the validity of the act is established.

I am not aware of any provision which limits the power of the legislature in respect to the act in question. The marine court was created by the legislature, and its jurisdiction was given to it by the legislature. It has been altered and enlarged from time to time, and may be diminished, or the court itself abolished, at the will of the legislature.

As to the authority given to other courts to transfer causes, it was granted under a power which has always been claimed for the legislature, as necessary to perfect the system of practice in the courts.

Additional tribunals have been created to relieve others. Old remedies have been taken away, and new ones furnished ; and where the obligations of contracts have not been impaired, the legislative power to alter, or even ■ destroy, remedies, has been admitted (Van Rensselaer v. Snyder, 13 N. Y. R., 299 ; Conkey v. Hart, 14 Id. 22). So the legislature may give a new remedy for the enforcement of contracts already made (Hauptman v. Gatlin, 20 N. Y. R., 247). And recently the legislature restricted appeals to the court of appeals, in certain cases (Laws of 1874, ch. 322).

The validity of the several acts of Congress providing for the removal of actions from the state to federal courts, has never, in either courts, been ques"tioned, bat have uniformly been recognized as being within the legislative power of Congress. Yet Congress derives its power only from the implied exclusiveness of the jurisdiction of the federal courts over actions, among others, between citizens of different states, by which it can exclude jurisdiction elsewhere.

From time to time, provision has been made by law for transferring causes to the supreme court from county courts (Laws of 1860, ch. 459); from supreme court to superior court of Buffalo (Laws of 1854, ch. 96, § 17); from district courts to common pleas (Laws of 1857, ch. 344, § 3); from one district to another (Laws of 1850, ch. 15); and, upon consent, from the supreme court to this court (Laws of 1873, ch. 339, § 8).

The act in question, by fair implication from a mass of other similar legislation, which has not been deemed •invalid, was clearly within the legislative power. It does not impair the obligation of any contract; it does not abridge or diminish the jurisdiction or power of this court; it does not even affect the remedy. It merely furnishes another tribunal, governed by the same rules, and administering justice in the same manner.

The argumentum ah inconvenienti must be addressed to the legislature. It is an inappropriate appeal to the courts.

There may be reasons why parties would prefer to remain in the tribunal of their selection. Especially might that be so in removals from the state to the federal courts, where the law is differently administered. And it is urged that in the marine court, the right to appeal is restricted, which, it is claimed, deprives parties of a right subsisting in this court. But if there is any such limitation to the marine court, which is doubtful, it being confined to actions originally commenced in that court {Code, § 11, subd. 3), it was competent for the legislature to impose its effect upon the parties. It has done so in the recent act already referred to {Laws, 1874, ch. 322).

We have no misgivings of the effect of sustaining, the act in question.

The decision at the special term will not be a precedent for any other similar motion ; and while recognizing the competency of the legislature to give us this new and increased power, we shall exercise it sparinglyy, and only in furtherance of justice.

The order appealed from must be affirmed, with, costs.

Curtis, J., concurred.

Van Vorst, J. (concurring).

I agree with the Chief Justice, that the order in question, upon the authority of Illius v. The N. Y. & N. H. R. R. Co., cited by him, does not affect a substantial right, and I concur in his conclusion, that the order appealed from should be affirmed.

Sedgwick, J. (dissenting).

The court of appeals-in Illius v. The N. Y. & N. H. R. R. Co. (13 N. Y. 597), held that an appeal does not lie from an order removing an action commenced in a state court to the-U. S. circuit court, on the ground that the defendant is a citizen of another State, and gave as one reason, that such an order does not affect a substantial right within section 11 of the Code. The court said ‘Moreover, in the view suggested, it did not affect a substantial right within the meaning of the Code. Whatever grounds of preference the plaintiff may have for one tribunal over another, the right supposed to be affected must relate to the merits of the controversy in the court below.”

In De Camp v. The N. J. Mutual Ins. Co. (32 N. Y. Superior Ct. 486 ; Stevens v. The Phoenix Insurance, &c., a later case in the court of appeals (cited from MSS.) is relied on. It is cited to support the conclusion, that when the special term, and the general term refuse to direct the removal under the act of Congress, the court of appeals will review that determination of the inferior courts. Judge Jones says in De Camp v. The N. J. Mutual Ins. Co., that the decison in Stevens v. The Phoenix Ins. Co. establishes “that upon a strict compliance with section 12 of the act of Congress, the state court loses jurisdiction, and the U. S. court gains it without any formal order to that effect, and consequently, if it is attempted to proceed in the State court after such compliance, the fact of such compliance will constitute a defense to be interposed by way-of plea to the jurisdiction, and this, although a formal order of removal has been refused.” Judge Jones then reasoned that whatever could be pleaded,, related to the merits of the action. He so held in a case where the special term refused to remove the cause. In a case where the proper steps for a removal had not been taken, we can see that a plaintiff would have a substantial right of the same character, to demand that the State court proceed to adjudicate upon his claim.

I think, therefore, that even under section 11, we are not compelled by Illius v. The N. Y. & N. H. R. R. Co., to hold that a substantial right of the defendant in this case is not affected by an order which prevents his asking of the court, what, but for the order, he would havé a substantial right to ask, viz., not only that he be freed now and always from the pursuit of the plaintiff, but that he have the affirmative relief claimed by his answer.

But the language of section 11 is markedly distinct from the language of section 349, which regulates appeals to the general term. The subdivision 3, of section 349, is that an appeal from an order at special term to the general term, may be made, “when it involves the merits of the action, or some part thereof, or .affects a substantial right.” Under this section, it is ■clear that there may be a substantial right affected which does not relate to any part of the merits of the controversy. It seems to me that there is substance in defendant’s claim that he shall receive justice, that is, be dismissed from further litigation, as far as plaintiff’s claim is concerned, and have judgment in his favor on the counter-claim. He may get the same dismissal and the same relief in another court of justice, but his right to be relieved in every court where he is compelled to appear, is not a matter of fornq but is substantial. That right to be relieved, is affected by an order which sends the action to be tried elsewhere. Under section 349, to allow an appeal, it is only necessary that a right of the kind described should be affected. The manner and the extent of its being affected is not important, and it is immaterial that the court should suppose or adjudge that he has in the place of the right affected, a right bestowed upon him of equal value. I have, therefore, come to the conclusion that the order appealed from may be reviewed here, in case we further see that we can review an order which by the statute may be made in the discretion of the court.

It has been decided in this court, that the general term should review the action below, even when the order appealed from is made in the exercise of a discretion. The question in such cases is whether the court below used a sound discretion, in a case calling for its exercise. “Discretion must be governed by rule; it must uot be arbitrary, vague and fanciful, but legal and regular” (2 Burr. 25, 39 ; 1 Burr. 570). The same faculties are employed in the use of discretion, as in the adjudication of absolute rights. The only difference is that in the one case, no fixed and general .rules can be applied, and in the other, the law has ■made such fixed and general rules.

In the present case, the plaintiff, moving below for the removal of the cause to the marine court, gave no reason that did not exist in all cases, or at least, very-many on our calendar. I think the court below should not have used the discretion given by the statute in a ■case where no facts were stated as peculiar to it which tended to show that it was expedient that that particular case should be removed. The rule would be different, if the language of the statute described certain classes of cases, assault, slander, &c.., which might be removed. The intent would be evinced to permit removal because of the character of the cause of action.

I therefore think that the order should be reversed. I am further of opinion that the fourth section of the act of 1874, ch. 545, is unconstitutional. The constitution continued this court with all the power and jurisdiction it had at the passage of the constitution (§ 11 of Art. 6). It seems to me that when a cause is removed for trial and determination from this court, the court loses, from the time of removal, jurisdiction of the ■action. If the legislature directs the removal, or ■enables some other body to direct it, it is an attempt to provide that in a certain contingency this court shall have no power, to exercise that jurisdiction which was possessed at the passage of the constitution. It is said that empowering this court to make an order of the kind in question, is giving additional power, is an increase of j urisdiction. But if in that one regard a new power is gained, the exercise of the power is suicide of jurisdiction, as it puts an action in a position where the court will have no power to adjudicate in it.

In my view, this court can not consent that the constitutional provision referred to shall not have effect in a specified case. The constitution forbids the superior ■court in the same terms it forbids the legislature lessensening the powers of the court. The constitution says, the superior court shall be continued in its jurisdiction. This court had no power of its own, before the statute, to remove a cause pending in it to another court. The-legislature had no power to cut off by statute the jurisdiction of a specified case, or of a class of cases, at any stage of the litigation. It can not give to this court power to do what the constitution impliedly says-shall not be done. Neither the legislature nor the court can do what will result in this court not being continued in its jurisdiction.

On both the grounds thus imperfectly stated, I think the order appealed from should be reversed.

Speib, J., concurred in the foregoing opinion of’ Sedgwick, J.  