
    Nathan Hutkoff v. William J. Demorest et al. Emily R. Caldwell et al. v. Franklin J. Wall. Gotthelf Greiner v. Jettel H. Hamburger.
    
      (Court of Appeals,
    
    
      Filed October 28, 1886.).
    
    Constitutional law — Appeal prom city court op New York—Act
    DEPRIVING THE NEW YORK COURT OP COMMON PLEAS OP ITS POWER TO REVIEW JUDGMENTS OP THE CITY COURT OP NEW YORK IS UNCONSTITUTIONAL—Laws op 1876, chap. 448, § 191 amended by Laws op 1886, chap. 418, § 1, subd. 2, New York constitution, art. 6, § 12.
    The act of 1886, L. of 1886, chap. 418, § 1, sub. 2, is unconstitutional in so far as it deprives the New York court of common pleas of its jurisdiction and power to review the judgments of marine (city) court which'it possessed at the time of the adoption of article 6, sec. 12 of the New York state constitution which rendered that power permanent and placed it beyond the reach of the legislature.
    Motion to dismiss an appeal from a judgment of the general term of the city court of New York to the court of appeals. This action was tried in the city court of New York, February 10, 1886, and a verdict rendered in favor of the respondents and against the appellants. Judgment was thereon entered on February 12, 1886, for the sum of $1,385.62. The appellants appealed therefrom to the general term of said court, and the appeal was argued April 26, 1886, said judgment being in all respects affirmed May 28, 1886. On May 29, 1886, the order affirming said judgment and notice of entry thereof was served on the attorney for the appellants. Notice of appeal from both of said judgments to the court of appeals was served on the respondents’1 attorney on June 3, 1886. Previous to the determination of said appeal by the general term of the city court, Laws 1886, chapter 418, was passed. The grounds upon which the motion is made are that this appeal is within the exception contained in said act, and also that the act is unconstitutional.
   Rapallo, J.

Article 6 of the constitution of the state was adopted by the people at the November election in 1869, and declared adopted by the board of state canvassers December 6, 1869. One of its provisions was that the superior court of the city of New York and the court of common pleas of the city and county of New York, the superior court of Buffalo and the city court of Brooklyn, were continued, with the powers and jurisdiction they then severally had, and such further civil and criminal jurisdiction as might be conferred by law. Art. 6, sec. 12.

In the case of Popfinger v. Yutte (102 N. Y., 38; S. C. 1 N.Y St. Rep., 334) we decided that this provision superseded section 12 of article 14, which declared that those courts should remain, until otherwise directed by the legislature, with their then present powers and jurisdiction; that after the adoption of article 6, it was beyond the power of the legislature to take from those courts any of the powers or jurisdiction which they had at the time of the adoption of the article, and that consequently subd. 5 of section 263 of the Code of Civil Procedure, which purported to confine their jurisdiction in judgment creditors’ actions to cases when the judgment on which the action was founded was recovered in the same court, was inoperative and void, because at the time of the adoption of article 6 those courts had general jurisdiction in equity within their territorial limits, coextensive with that of the supreme court, and subdivision 5 purported to take away part of* that jurisdiction by limiting it in judgment creditors’ suits to judgments recovered in the same court.

At the time of the adoption of article 6 the jurisdiction and powers of the court of common pleas of the city and county of New York were declared and enumerated in title 6 of the Code of Procedure §§ 33, 34.-

Section 34 is ill the following words: “Section 34. The court of common pleas of the city and county of New York shall also have power to review the judgments of the marine court of the city of New York, and of the justices' courts in that city.”

By the act of 1883, chap. 26, the name of the marine court was changed to the city court, but it still remained the same court, with the same judges and officers, and the same jurisdiction, .and the power to review its judgments continued in the court of common pleas under its original grant of power.

By chap. 418 of the Laws of 1886 it was sought indirectly and by language, the full effect of which would not readily be observed by a casual reading, to take from the court of common pleas the important power of reviewing the judgments of the marine court, now the city court, and to authorize an appeal from those judgments direct to the court of appeals, without requiring that they should first be subjected to review by the court of common pleas. The enactment is as follows:

' “ Section 1. Subdivision 2, of sec. 191, of chap. 448, of the Laws of 1816, entitled ‘An act relating to courts, officers of justice and civil proceedings,’ is hereby amended so as to' read as follows: 2. An appeal cannot be taken in an action commenced in a court of a justice of the peace, or in a district court of the city of New York, or in the city court of Yonkers, orina justice’s court of a city, unless the court below allows the appeal by an order made at a general term which rendered the determination, or at the next general term which rendered the determination, or at the next general term after judgment is entered thereupon. An action discontinued because the answer set forth matter showing that the title to real property came in question, and afterwards prosecuted in another court, is not deemed to have been commenced in the court wherein the answer was interposed within the meaning of this subdivision. The city court of New York shall be deemed a superior city court within the meaning of section 190 of the Code of Civil Procedure.

“ Section 2. This act shall take effect immediately, but shall not apply to any actions now pending in which the time to appeal has not already expired.” ■

If the act were construed literally it could not have any operation whatever, for it would have no application to any actions pending at the time of its passage in which the time to appeal had not then already expired, and it is difficult to suppose any case to which, under that restriction, it could apply. But reading it as if the word “not” were omitted, it is still subject to the fundamental objection that it contravenes section 12 of article 6 of the constitution by depriving the court of common pleas of its jurisdiction and power to review the judgments of the marine city court which it possessed at the time of the adoption of the article, and which were thereby rendered permanent and placed beyond the power of the legislature to take from that court.

The act authorizing appeals to this court from the decision of the general term of the city court óf Brooklyn (Laws of 1871, chap. 282), and its recognition by this court by entertaining such appeals, are relied upon by the appellants as giving support to their position in the present cases. But we do not see that they affect the question. There is no provision in the constitution in relation to the supreme court which could be construed as restraining the legislature from taking from that court the appellate jurisdiction over the judgments of the city court of Brooklyn which it possessed in 1869 and 1870, and the question now presented could not arise in respect to the act of 1871, before referred to.

The motion to dismiss the appeals in the above entitled cases should be granted, but as the question is new, no costs should be allowed to either party.

All concur.  