
    WILLIAM C. DE HART, Respondent, v. RUFUS HATCH, Appellant.
    
      State Constitution, art. 6, § 6—Supreme Cowrt—jurisdiction of—power• of legislature oner'— Order transferring action—when appealable.
    
    The Constitution of this State, article 6, section 6, confers upon the Supreme Court general jurisdiction in law and equity, and the legislature has no power to abridge or limit such jurisdiction, either with or without the consent of that court.
    Chapter 299 of the Laws of 1872, and chapter 545. of the Laws of 1874, providing that any of the courts therein named, 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. Either party to -an action in the Supreme Court, is entitled to have the case tried in and determined by that court, and such right cannot be taken away either by the legislature or the court, without his consent.
    An order directing the transfer of an action in pursuance of these acts, is appeal-able (1), as affecting a substantial right, and (2), as involving the constitutional validity of the legislative provisions under which it was made.
    Appeal from an order transferring this action to the Marine Court of the city of Hew York. «
    This" action, which was brought in the Supreme Court, to recover damages for slanderous words published and spoken of the plaintiff by the defendant, was transferred to the Marine Court by an order made in pursuance of chapter 629, Laws of 1872, and chapter 545, Laws of 1874. Section 12 of chapter 629, Laws of 1872, provides: “ * * * , and any other court of record in the city and county of Hew York, shall have power, by an order to be entered by its direction on its minutes, to send any action of libel, slander, assault, battery, criminal conversation, seduction, malicious prosecution or false imprisonment, pending, or that may hereafter be brought in said courts of record, after issue has been joined 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 the said Marine Court and entered by him in its minutes, and thereupon the said Marine Court of the city of Hew York, shall have immediate and exclusive jurisdiction of such action, and the said jurisdiction of the said court as to the amount of the recovery in such action, costs and additional allowances therein, shall, for the purposes of such action, be the same and as full and comprehensive as that of the court from whence the same proceeds.”
    Section 4 of chapter 545, Laws of 1874, 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 Marine Court and be entered by him on its minutes, and thereupon the said Marine Court shall have immediate and exclusive jurisdiction of such action as full and comprehensive in that particular as that of the court from whence the same proceeds.”
    
      Edwcvrds Pierr&pont, for the appellant.
    
      O. P. JBuel, for the respondent.
   Daniels, J.:

The object of this action is the recovery of damages, for speaking and publishing certain slanderous words concerning the plaintiff!, in his occupation of a seaman. He was mate of a steamship, and the words alleged to have been uttered, imputed to him unfitness and incompetency in that capacity. By reason of them, he alleges that he was discharged from his position, and has since been unable to procure employment. The damages claimed for the in jury sustained, are the sum of $20,000. After issue was* joined in the case, the court, on motion of the plaintiff, directed it to be transferred to the Marine Court of the city of Hew York. This transfer was directed, under the authority created by chapter 629 of the Laws of 1872, and chapter 545, of the Laws of 1874. By subdivision 12 of section 3 of the act of 1872, it was provided that any court of record in the city and county of HewYork, should have power, by an order entered under its direction in its minutes, to send any action of libel, slander, assault, battery, criminal conversation, seduction, malicious prosecution, or false imprisonment, then pending, or afterward brought in such court, after issue joined therein, to the Marine Court for trial; and by section 4 of the act of 1874, the same authority was provided for any court of record, in its discretion, to send any action pending in it, or afterward brought in it, by the same proceeding after issue’joined, into the Marine Court for trial, The terms, in each instance, used to create and confer this authority, it will be seen, require no motion or consent of the parties or either of them to the transfer, in order to warrant the direction. But if it can properly be done at all, the power may be exercised by the courts at their own instance or inclination, or on motion of either of the parties. Under the first act, the court may direct all the actions of the description given in it, to be at once transferred to the Marine Court, subject only to the qualification that issue shall have been at the time joined in them ; and, under the second, all actions, of every nature and description, may be, in like manner, transferred to that court by any court of record in the State. If the act of 1872 be' constitutional and.valid, then this court, the Superior Court and the Court of Common Pleas, may at once transfer every suit, of the description already mentioned, into the Marine Court for trial. Under the act of 1874, the same thing may be done by all courts of record, in all classes and descriptions of cases. For the exercise of the authority has not been rendered dependent on the assent of the parties, or either of them, in the action. This legislation is certainly novel, as well as important. In the enactment of the Code, provision was made for a somewhat similar transfer of equity cases and issues of law, pending in this district, from this court to the Superior Court, But as this was construed, it was designed to include the cases which had been previously transferred to the new court from the preceding Supreme Court and Court of Chancery, and, for that reason, rendered specially subject to legislative control. While all those cases were vested in the newly formed Supreme Court by the Constitution of 1846, it had only such power to hear and determine them, as should be prescribed by law. The subject-matter of both sections, contained in the Constitution concerning them, was the same, except that one included more than the other. The fifth section related to all suits and proceedings pending in the preceding courts, while the sixth section included all such suits and proceedings as should he ready for hearing on the first Monday of July, 1847; and the general qualification followed both, that the new court should have power to hear such of those suits and proceedings as might be prescribed by law. But even if this qualification should be restrained in its application to the cases ready for hearing on the first Monday of July, 1847, the result would remain the same, for the cases in the preceding courts were not included in the general jurisdiction given to the new court. That provision, under a well established rule of construction, was prospective in its nature, and did not include the cases pending in the old courts. The convention, for that reason, found it necessary to make them the subject-matter of distinct constitutional provisions, and they did that by the sections already referred to. These sections, at most, simply vested the previously pending cases in the new court, without specifically providing what should be done with such of them as the preceding Supreme Court and Court of Chancery should not be able to dispose of by trial and hearing; and they were left by that circumstance, even if no provision had been made for legislation, the proper subjects of legislative interposition, which, of itself, would render the legislation of 1848, concerning them, entirely valid. Heither this legislation, nor the provisions made by law for transferring indictments from one court to another, constitute any well established precedent for the acts of 1872 and 1874; for those relating to the transfer of indictments from one court to another, simply regulates the practice in courts and cases wholly under the unrestrained control of the legislature, and the legislation concerning the cases pending in the courts, existing before the Constitution of 1846 went into effect, was well warranted by the special provisions it contained for the disposition of that unfinished business. The power of the legislature to enact the provisions fdr the transfer of actions at issue from this court to the Marine Court, stands upon no such authority, and its existence cannot be in any manner supported by the precedent of any antecedent legislation of the same description. Whether it be valid or not, must depend solely upon the constitutional provisions existing at the time.of its enactment. But, before considering that point, it will be necessary to dispose of the objection taken on the part of the respondent, that the order itself is not appealable. If the parties have, the right, under the Constitution, to have the issue joined in their action tried in the circuit, its denial would seem to affect a substantial right, and, for that reason, to form the proper subject of an appeal to the General Term. , The case of Illius v. New York and New Haven R. R. Co. in the reasoning of the opinion, though not in the decision made, which merely dismissed the appeal in that court, supplies some force to the objection; and it was maintained as a proper one, in the recently decided case of Alexander v. Bennett, in the Superior Court. But with all deference for the decision of that tribunal, this conclusion is believed to be erroneous: for all orders are now appealable to the General Term, even though involving the exercise of discretion, which affect any substantial right, and that principle has been heretofore applied to an order of this description, in the case of Cooke v. National Bank of Boston. The order which was made is also expressly rendered appealable, because it involves the constitutional validity of the legislative provisions under which it was made. Owing to that attribute of the controversy, an appeal may not only be taken from it to the General Term, hut, after a decision upon it there, to the Court of Appeals, where the merits of the controversy may be finally considered and determined. The validity of the provisions under which the order was made, must be therefore regarded as properly before this court for its examination and decision. They are assailed, first, because they are contained in acts of a local character, and are not embraced in their subjects, as expressed in their titles. That point was fully examined in the opinion of the chief justice of the Superior Court, in the case already referred to, and held to be untenable. This was concurred in by at least one of his associates, without apparent dissent from either of the other justices participating in the decision. That conclusion may be properly followed in this case, for the reasons there given in its support.

The second objection is of a more serious and formidable nature, depending on a different provision of the Constitution, which declares that “There shall he a Supreme Court having general jurisdiction in law and equity.” A similiar objection was considered by the learned chief justice of the Superior Court, arising under another provision of the Constitution, in disposing of the case decided by that court, but with no extended examination of it. There was no necessity existing in that case for its particular discussion after the-conclusion was adopted, that the order was not appealable, and it was, after a very brief consideration, determined to be without support, and the order of the Special Term affirmed. This determination seems to have secured the approbation of but one of the other justices of the court, and it was opposed by an able opinion written by Mr. Justice Sedowiok, in which another of the associate justices concurred. This substantially neutralized the effect of the decision upon this point, and it can now be properly considered solely under the effect of the provision made by the Constitution. By the provision required to be considered and construed in- the disposition "of this case, the only court of general jurisdiction throughout the entire State was established. It provided that there should be a Supreme Court having general jurisdiction in law and equity. 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 t,o 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. It was rendered permanent and uniform in its nature, and as those attributes are provided for it by the fair import of the Constitution, it has not been left to the legislature either to abridge or limit them by any interposition on its part. For, if anything of that kind can be accomplished by legislation, then the jurisdiction can be by law abridged and reduced; and that would so far nullify the provision that there shall be such a court as the Constitution has described, as such legislation might be made to extend. From the nature of the unqualified jurisdiction created, the legislature very clearly could not have provided that the Supreme Court should not have the power to entertain, hear and decide the cases enumerated in the act of 1872. If that could be done, then the jurisdiction of the court would depend upon the legislature instead of the Constitution; and if it should- be done, the court would no longer have general jurisdiction in law and equity, as the Constitution has provided that it shall have. 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 co-exist. 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 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 he 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.

Ho validity to the transfer can be derived from the assent of one of the parties to the controversy. For each is equally entitled to the preservation of the right, provided by the Constitution, that the jurisdiction of the court shall be maintained and preserved for the disposition and determination of actions pending in it. After the action has been once commenced, the defendant has the right to require that the case shall be heard and decided by the court, unless it may be voluntarily abandoned or dismissed by the act of the court itself. He, equally with the plaintiff, can insist that the jurisdiction provided by the Constitution shall be observed and maintained for the purpose of giving him a hearing, and,adjudicating as to his rights. If both consented, an entirely different case would be presented, for even a constitutional right may be surrendered by consent. But without such consent, the court cannot, as it attempted to do by the order, deprive' itself of the j urisdietion over the action, which the Constitution in terms required to be maintained.

The order should be reversed, and the motion denied, but, under the circumstances, without costs.

Davis, P. J., and Beady, J., concurred.

Order reversed and motion denied, without costs. 
      
       Vol. 2, Laws of 1872, 495.
     
      
       Laws of 1874, 731.
     
      
      
         Code, §§ 47, 50.
     
      
       Giles v. Lyon, 4 Com., 600.
     
      
       Const. of 1846, art. 14, §§ 5, 6.
     
      
      3 Kernan, 597.
     
      
       Dowdy v. Poullain, 9 Sup. Ct. Rep. (2 Hun), 218; Security Bank v. Bank of Commonwealth, id., 287; Matter of Duff, 41 How. Pr., 350; Gray v. Fisk, 53 N. Y., 630.
     
      
       1 Lansing, 494.
     
      
       Code, § 11, subd. 4.
     
      
       Art. 6, § 6 of Const.
     
      
       Gracie v. Freeland, 1 Com., 228, 232.
     