USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 32
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what similar ultimate findings by the Constitutional Conven- tion of 1894, although in the place of the General Terms of the Supreme Court they put Appellate Divisions (See Chapter XXXIII).
The report of the Convention of 1894 stated that it was expected "to obviate the overcrowding of the Court of Appeals calendar by establishing more effective and satisfactory courts of intermediate appeal, and enlarging their power and juris- diction." They divided the State into four departments, and recommended that in each there be established "a tribunal composed of five justices of the Supreme Court, who shall perform substantially no other duties, and shall be the court of last resort for that department upon all questions of fact and upon all interlocutory proceedings." The report, in the next paragraph reads : "The Court of Appeals is limited to its proper function of declaring and settling the law. Believing that under the operation of the proposed Appellate Division of the Supreme Court and with the distribution of duties and jurisdiction above indicated strictly observed, the Court of Appeals will have no difficulty in meeting all demands upon it, we have done away with the makeshift of a second division and have prohibited the imposition of a money limit upon the right of appeal to the Court of Appeals."29
The recommendations became organic law by ratification by the people of the amended Constitution in November, 1894, the judiciary article taking effect on January 1, 1896. The salaries of the judges were continued at the level set in 1887, by Act of Legislature March 17, when the stipend of the chief judge was increased to $10,500, from $7,500, and those of the associate judges from $7,000 to $10,000.30
In 1889, Section 7 of Article VI was amended to authorize
29. "Journal of the Constitutional Convention of 1894," p. 845.
30. All the Judges of the Court of Appeals are now given an annual allowance of $3,700 each for expenses. The Clerk, who holds office during pleasure, receives a salary of $6,000. The Reporter receives $5,000 a year.
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the Governor, upon the certificate of a majority of the judges of the Court of Appeals that that court, owing to accumula- tions of causes before it, was unable to hear and dispose of the same without serious delay, to designate not more than four justices of the Supreme Court to serve as associate judges of the Court of Appeals until the number of causes undisposed of upon the calendar should be reduced to two hundred, when the judges so designated should automatically return to the Su- preme Court.
Chapter XXXIV, which reviews the work of the Constitu- tional Convention of 1915, shows that the need of either an enlarged Court of Appeals or an enlarged intermediate ap- pellate court was still an imperative need. There were then more than six hundred cases pending before the Court of Appeals, and the Appellate Divisions of the Supreme Court were also overworked.31 The convention recommended the temporary designation of Supreme Court justices as associate judges of the Court of Appeals to create what would be an- other Second Division. The report of the judiciary committee of that convention pointed out that "the average time required between the date of filing return and the cause being reached for argument, unless it is entitled to a preference, is about two years."
31. "There was at the time of the Convention of 1894 an arrearage of about 175 cases in the Court of Appeals, and it was predicted by some of the delegates in discussing the report of the Judiciary Committee, that this number might be increased to between 300 or 400 by the time the new Judiciary Article became effective, viz .: January I, 1896. As a matter of fact, there is now (1915) an accumulation of more than 600 cases pending in the Court of Appeals, and the average time required between the date of filing return and the cause being reached for argument, unless it is en- titled to a preference, is about two years. The Court has made up no calendar since May 4, 1914, and the calendar then made up embraced re- turns filed to April 20, 1914, only. The number of cases on that calendar was 714. During each of the five years ending 1914 the Court has disposed of on the average 671 cases, and the average number of returns filed has been 769, so that each year adds on an average 100 cases to the number accumu- lating in the court."-"Journal of the Constitutional Convention of 1915," p. 486.
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The revised Constitution, submitted by the Convention of 1915, was rejected by the people, which would have been serious had the overcrowding of the calendar of the court con- tinued. During the last few years, owing to the great in- dustry of the members of the Court of Appeals, the situation has been considerably bettered. Indeed, the judges are now able to keep the calendars down to reasonable limits with- out asking for the assignment of any justices of the Supreme Court to aid them. Another convention sat in 1921, to con- sider amendments of the judiciary article; its recommenda- tions are stated in Chapter XXXVI, and have been approved by the Legislature; hence the electorate will have an oppor- tunity of stating its will in the matter at the general election in November, 1925. But as the situation stands at this writ- ing (April, 1925), the Constitution of 1894 is still the organic law. Chapter XXXV gives the judiciary article, No. VI, in full. Sections 6, 7, 8, and 9, in general, govern the Court of Appeals.
As to the jurisdiction of the Court of Appeals, this is to an extent statutory, though the existence of the court is constitu- tional.32 "The Constitution lays certain restrictions upon the jurisdiction of the court; it marks certain limits which the Legislature may not transcend; but the Legislature's power of further restriction is unlimited, with the single exception that the right to appeal shall not depend upon the amount in- volved."33 The Legislature's power generally manifested itself in restriction, but it also has power to enlarge the juris- diction. "The provisions of the Constitution regulating the jurisdiction of the Court of Appeals, and providing that the Legislature may further restrict it, do not prohibit the Legis- lature from enlarging the jurisdiction of the court save only
32. See "The Jurisdiction of the Court of Appeals of the State of New York" (1903) an excellent and exhaustive work (277 pages), by Benjamin N. Cardozo, of the New York Bar, now a Judge of the Court of Appeals.
33. Constitution, Art. VI, Sec. 9; Halliburton vs. Clapp, 149, N. Y. 183. 187; People ex rel. Fenny vs. Board of Canvassers, 156 N. Y., 36, 43.
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in those special cases which are expressly withdrawn from review."34 No legislation, however, can clothe the court with power, except where the judgment is of death, to pass upon any question of fact, nor can any legislation clothe it with power to review, after a unanimous affirmance by the Ap- pellate Division, the sufficiency of the evidence to support a finding or a verdict not directed by the court. For the same reason, where the appeal is from an interlocutory judgment, or an intermediate order, other than an order granting a new trial on exceptions, there would seem to be no power in the Legislature to dispense with the necessity for the allowance of the appeal by the Appellate Division. This would leave the jurisdiction over criminal causes as the chief field for the pos- sible enlargement of the court's jurisdiction. That jurisdic- tion cannot, however be enlarged by the stipulation of the parties.35 The jurisdiction of the court is designated and cre- ated by law, and it has no other,36 writes Judge Cardozo.37
Sections 7 and 8 of the Constitution of 1894 regulates the composition of the Court of Appeals, but the power conferred by these sections is limited by Section 3 of the same article, which provides that "no judge or justice shall sit in the Appel- late Division or in the Court of Appeals in review of a decision made by him or by any court of which he was at the time a sitting member."38 The provisions as to the disqualification of a judicial officer to sit as a judge cannot be waived.39 "But a judge of the Court of Appeals, unlike other judges,
34. People ex rel. Commissioners of Charities vs. Cullen, 153 N. Y. 629. 35. Hoes vs. Edison General Electric Co., 150 N. Y. 87 ; Bronk vs. N. Y. & N. H. R. R. Co., 95 N. Y. 656.
36. Rich vs. Manhattan Ry Co., 150, N. Y. 542, 544; Hewlett vs. Elmer, 103, N. Y. 156, 164; People ex rel. Commrs. of Charities vs. Cullen, 151, N. T. 54, 56; People vs. Trezza, 128 N. Y. 529.
37. "The Jurisdiction of the Court of Appeals," (Cardozo), pp, 2-3. 38. Ibidus, p. 5; Van Arsdale vs. King, 152 N. Y., 69, 71.
39. Oakley vs. Aspinwall, 3 N. Y. 547 ; French vs. Merrill, 27 App. Div. 612; Converse vs. McArthur, 17 Barb. 410; Baldwin vs. McArthur 17 Barb. 414; Matter of Bingham, 127 N. Y. 296, 31I.
C.&L .- 52
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except justices of the Appellate Division of the Supreme Court, may take part in a decision of a question which was argued orally in the court when he was not present and sitting therein as a judge."40
Section 7, in its opening clause, and section 9 state the con- stitutional restrictions upon jurisdiction. As to the power of the Legislature, Section 9, the Legislature has defined by statute the jurisdiction of the court. The statutory provisions affecting the court's jurisdiction are Sections 190 and 191 of the Code of Civil Procedure, and Sections 517, 519 and 528 of the Code of Criminal Procedure. The Constitutional Conven- tion of 1921 was urged to leave the jurisdiction of the Court of Appeals elastic, to be dealt with as the Legislature from time to time might see fit, but they were of opinion that the priv- ilege of appeal to the highest judicial tribunal of the State should be fixed by constitutional means ; so they recommended that the existing provisions of Sections 88 and 589 of the Civil Practice Act be embodied in the Constitution. "Five judges constitute a quorum, and the concurrence of four is necessary to pronounce a judgment. If such concurrence be not had the case must be reheard; but no more than two rehearings can be had, and if then four judges do not concur, the judg- ment of the court below is affirmed. The Legislature may authorize the judgments, decrees and decisions of any inferior local court of record established in a city, having original civil jurisdiction, to be removed for review directly into the · Court of Appeals."41
In the list given at foot,42 of all the permanent judges of
40 "Juris. Ct. App.," Cardozo, pp. 5-6; "Code Civ. Pr.," Sec. 46.
41. "Legis. Manual, N. Y.," 1924, p. 641.
42. The Chief Judges and the Associate Judges after 1870, with the dates of their election or appointment were:
Chief Judges : Sanford E. Church, May 17, 1870; Charles J. Folger, appointed May 20, 1880, vice Sanford E. Church, deceased; elected Nov. 2, 1880; Charles Andrews, appointed Nov. 19, 1881, vice Charles J. Folger, re- signed; William C. Ruger, Nov. 7, 1882; Robert Earl, appointed Jan. 19, 1892, vice William C. Ruger, deceased; Charles Andrews, Nov. 8, 1892;
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the Court of Appeals elected or appointed since 1870, will be noticed the names of many eminent jurists, who reached fame as lawyers; indeed, the list may be taken as embracing the names of more great lawyers and jurists than could be named in any other roster of equal size and covering the same period of judicial history of any other State. This does not detract from the excellent record of the New York Supreme Court; indeed, the Supreme Court shares in the distinction, for very few of the names shown do not also have place on the rosters of the Supreme Court. With few exceptions, the Court of Appeals bench has been recruited from that of the Supreme Court, and what was written twenty years ago,43 by Mr. Irv- ing Browne, editor of the "Albany Law Journal," as a closing eulogy of the Court of Appeals, may, therefore, also be fittingly applied to the Supreme Court :
In a material view New York is indeed the Empire State. It would be arrogating too much to claim for her the Empire in Law. Fortunately, for the happiness of mankind, the best
Alton B. Parker, Nov. 2, 1897; Edgar M. Cullen, designated by the Gov- ernor Jan. 1, 1900, as an Associate Judge, appointed Chief Judge Sept. 2, 1904, vice Alton B. Parker, resigned; elected for full term Nov. 8, 1904; Willard Bartlett, Nov. 4, 1913; Frank H. Hiscock, Nov. 7, 1916.
Associate Judges : William F. Allen, May 17, 1870; Martin Grover, May 17, 1870; Rufus W. Peckham, May 17, 1870; Charles J. Folger, May 17, 1870; Charles A. Rapallo, May 17, 1870; Charles Andrews, May 17, 1870; Alexander S. Johnson, appointed Dec. 29, 1873, vice Rufus W. Peck- ham, deceased ; Theodore Miller, Nov. 3, 1874; Robert Earl, appointed Nov. 5, 1875, vice Martin Grover, deceased ; elected Nov. 7, 1876; Samuel Hand, appointed June 10, 1878, vice William F. Allen, deceased; George F. Dan- forth, Nov. 5, 1878; Francis M. Finch, appointed May 25, 1880, in place of Charles J. Folger, chosen Chief Judge; elected Nov. 8, 1881 ; Benjamin F. Tracy, appointed Dec. 8, 1881, in place of Charles Andrews, appointed Chief Judge; Rufus W. Peckham, Nov. 2, 1886; appointed Justice of the U. S. Supreme Court, 1895; John Clinton Gray, appointed Jan. 25, 1888, vice Charles A. Rapallo, deceased; elected for full term, Nov. 1888; Denis O'Brien, Nov. 5, 1889; Isaac H. Maynard, appointed Jan. 19, 1892, in place of Robert Earl appointed Chief Judge; and reappointed in place of Charles Andrews, elected Chief Judge; Edward T. Bartlett, Nov. 7, 1893; Albert Haight, Nov. 6, 1894; Celora E. Martin, Nov. 6, 1895; Irving G. Vann, appointed Dec. 31, 1895; vice Rufus W. Peck- ham, resigned; elected Nov. 3, 1896; Judson S. Landon, designated Jan. I, 1900, pursuant to Sec. 7, Art. 6 of the Const .; Edgar M. Cullen, Jan. I,
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jurisprudence does not depend upon material resources or great aggregations of population. But owing to the great men who early formed our jurisprudence, New York has made law not only for herself, but for most of the other States of the Union. Her judgments and those of Massachusetts have always been the most influential upon the nascent jurispru- dence of the younger States. Her adjudications have long been listened to with deference even in the mother country, and this has grown rather than lessened down to this time. Her reforms in procedure alone have entitled her to a marked preëminence. She has always been creative in the domain of the law. With a decent conservatism, she has at the same time headed the advance of legal reform, and still marches in the van. That the laws which her lawyers have devised, her legislature has enacted and her judges have construed and enforced, are now ruling a large part of the English-speaking world, and have even been adopted by our venerable mother country, is a prouder and more durable achievement for our State than all her material glory and power. Her judiciary have been the most numerous of any of the States. They have had the largest and the most various interests to protect,
1900; William E. Werner, designated Jan. 1, 1900; John Clinton Gray, Nov. 4, 1902; Denis O'Brien, Nov. 3, 1903; William E. Werner, Nov. 8, 1904; Willard Bartlett, designated Jan. 1, 1906; Frank H. Hiscock, designated Jan. 4, 1906; Emory A. Chase, designated Jan. 8, 1906; Willard Bartlett, Nov. 5, 1907; Edward T. Bartlett, Nov. 5, 1907; Albert Haight, Nov. 3, 1908; Frederick Collin, appointed Oct. 5, 1910, vice Edward T. Bartlett, de- ceased; elected for full term Nov. 8, 1910; Irving G. Vann, Nov. 8, 1910; Frank H. Hiscock and Emory A. Chase, redesignated Jan. 1, 1911 ; William H. Cuddeback, Nov. 5, 1912; John W. Hogan, Nov. 5, 1912; Nathan L. Miller, designated Jan. 13, 1913; Frank H. Hiscock, Nov. 4, 1913; William B. Hornblower, appointed Feb. 2, 1914, in place of Willard Bartlett, elected Chief Judge; Benjamin N. Cardozo, designated Feb. 2, 1914; Samuel Sea- bury, appointed Dec. 8, 1914, vice William B. Hornblower, deceased ; elected for full term Nov. 3, 1915, Cuthbert W. Pound, appointed Aug. 20, 1915, in place of Nathan L. Miller, resigned ; elected for full term Nov. 7, 1916; Benjamin N. Cardozo, appointed Jan. 15, 1917, vice Samuel Seabury, re- signed; Chester B. Mclaughlin, appointed Jan. 16, 1917, in place of Frank H. Hiscock, elected Chief Judge; Frederick E. Crane, designated Jan. 16, 1917 ; William S. Andrews, designated Jan. 24, 1917; Benjamin N. Cardozo, Nov. 6, 1917; Chester B. Mclaughlin, Nov. 6, 1917; Abram I. Elkus, ap- pointed Nov. 12, 1919, vice William H. Cuddeback, deceased; Emory A. Chase, Nov. 2, 1920; Frederick E. Crane, Nov. 2, 1920, vice Frederick Col- lin, retired Dec. 31, 1920, because of age limit; William S. Andrews, elected Nov. 8, 1921; Irving Lehman, Nov. 6, 1923.
43. "Public Service of the State of New York," Vol. III, p. 41.
WILLIAM S. ANDREWS
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and the most intricate legal problems to solve. Great lights have shone from her bench in every period, like beacons vis- ible from afar, illuminating even the shores of foreign lands. In all times the mass of her judges have been just, humane and God-fearing men, of good report, not greedy of gain, not ambitious of power, not anxious for fame; learned in the law, cultivated in letters, untiring in duty, unswerving from right, passionate lovers of justice and liberty. The names of most of them have been and can be but little known to fame, but their work has been a worthy part of the heritage of which the State is proud. Their reward is in her prosperity, glory, and happiness.
Individual biographical reference is outside the scope of this review, but in the Judicial Districts chapters an endeavor will be made to sketch the careers of these great jurists in the reviews of the counties from whence they came. The mem- bers of the Court of Appeals in 1924 were : Frank H. Hiscock, chief judge ; Benjamin N. Cardozo, Cuthbert W. Pound, Ches- ter B. McLaughlin, Frederick E. Crane, William E. Andrews and Irving Lehman, associate judges. The officials are : William J. Armstrong, clerk of the court; John Ludden, deputy clerk; J. Newton Fiero, reporter of the court.
In a paper entitled "Three Courts," written by Seymour D. Thompson of St. Louis, and contributed to the "American Law Review," 1900 (Vol. 34, pp. 398-408), is an interesting description of the New York Court of Appeals. The other two courts described are the United States Supreme Court and the Supreme Court of Missouri. After stating that in the latter court the judges are ungowned, and that the lawyers do not, as a rule, rise when the judges take their seats, the writer proceeds as follows:
A person entering the New York Court of Appeals, and having busi- ness there, will have an experience somewhat different. Six or seven judges will enter the court, wearing black gowns similar to those worn by the judges of the Supreme Court of the United States, and by the United States Circuit Court of Appeals. When they enter the court room to take their seats, the members of the bar rise, and seat themselves at a nod from the Chief Judge. The crier is a little more formal in announcing the court
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than in the Supreme Court of Missouri, but in speaking of the court the word "honorable" is left out; it is merely "this court." Then, the time allowed for argument has this peculiar distinction. One hour on a side is allowed for the argument of appeals from judgments of the appellate division in ordinary cases; but on appeals from what are called "orders," the time allowed the appellant for oral argument is limited to twenty min- utes, and the respondent is allowed but fifteen. When it is considered that some of the greatest cases-cases involving the greatest interest and the greatest questions-come to the Court of Appeals from "orders," this limitation of the time allowed for argument is undoubtedly to be regretted. This is especially true of proceedings brought to review the assessments of property for taxes under the statutory writ of certiorari-proceedings which have frequently gone to the Supreme Court of the United States. It is also true of proceedings relating to the condemnation of property for highways and other public uses; and true in many other cases that might be mentioned. It must become quite evident to the visitor that he stands before a court whose docket is greatly congested, whose judges are greatly overworked, and who struggle under the constant feeling that they must get possession of their docket somehow if possible, and that long delays of justice are tantamount to denials of justice. The court has one good feature : its session opens at two o'clock in the afternoon, and continues for four hours, that is, until six. This arrangement has, no doubt, been devised to enable the lawyers from the city of New York, which comprise more than half the population of the State, to reach Albany on the morn- ing trains, argue their cases, and get home the same day; but it equally benefits, and in a similar way, a large number of lawyers living in adjacent country places. The time allowed for argument is extended very reluc- tantly, and only upon the court being clearly convinced of its necessity or propriety. Often an appellant craving an extension gets it under the con- dition that his case "goes to the heels of the docket," as our brethern in the Southern courts would say, or "stands aside," as they say at Albany. Sometimes he gets a very short extension without having to "stand aside."
But when the argument commences, unless his case is the first one on the calendar for the day, he must wait one or two minutes until the judges have finished writing (in long hand, of course) what they have to write in their dockets about the case which has just been argued. Then he is told by the Chief Judge-this is the title, not Chief Justice-to proceed. The Chief Judge (Alton B. Parker) is a young man, somewhat above forty, tall and handsome; is courteous and urbane under the greatest mental and physical fatigue, and is so without ostentation, not from any labored sense of duty, but from true gentleness and goodness of heart. He is one of the most popular men in the State of New York. He was elected to his position on the Democratic ticket, which is generally a minority party in that State, over Mr. United States Circuit Judge Wallace, who ran on the Republican ticket, by a plurality of about 50,000 votes.
Immediately on his right sits Judge O'Brien, in whose speech one
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might expect, from his name, to detect a trace of the Irish brogue, but who speaks quite like an old-fashioned Yankee. He was elected from one of the northern counties of New York, where he was no doubt born and grew up, for his speech carries with it the very accent of that part of the country. Except the Chief Judge, he is the only Democrat on the bench. He is a very great lawyer and judge. He must be nearing the age of seventy, the age at which judges are compulsorily retired under the Con- stitution of New York.
Immediately on his right sits a comparatively young man, who wears glasses and whose face and forehead are strikingly intellectual. This is Judge Haight, who is founding for himself an enduring reputation by his work upon that bench.
Another very strong lawyer and judge has just ascended the bench, having been designated to that service by the Governor, who thus pro- moted him from the Appellate Division of the Second Department (Brook- lyn), where he has been recently serving. We refer to Judge Cullen, whose promotion was eminently deserved, and who will certainly make a record in his new position, if he is allowed to remain there long enough. Our omission to mention the other very able lawyers who sit as judges of this court, is not intended as any disparagement of them.
The argument has now commenced. It may be that the speaker finds himself under the necessity of stating and arguing a great case in the period of half an hour. This will put his powers to the greatest test; and his success, if he succeeds in presenting the salient features of his case, and in forcing his adversary to the ground on which it must be fought out, will furnish the very best proof of his ability as a lawyer. He finds that he is losing time at almost every step, by questions which are put to him by the different judges. At the same time, he feels that every question indicates a desire on the part of the questioner to make use of the time allowed for argument to get hold of the main features of the case. One may sit in that court day after day without hearing an idle question put to a speaker; and especially the judges refrain from the habit of arguing back. Judge O'Brien is the greatest questioner. Notwithstanding his advanced age, his intellect is extremely alert. Once in a while he throws out a sug- gestion to see how it strikes counsel; possibly to see whether counsel will be able to remove some difficulty that arises in his mind. Judge Haight may ask a few questions, not in the course of an argument, but in the course of an afternoon; and so may some of the other judges; but they are all directed to the same end, an effort to acquire, during the time allowed for argument, as good an understanding of the case as possible. The judges sometimes whisper to each other, and occasionally a judge may leave the room for a few minutes and then return. Notwithstanding the limited time allowed for argument, a lawyer having a case to present to the court will sit down, feeling the force of the remark that has often been made of this court, that it is a place where a gentleman can practice law without losing in any degree his self-respect.
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