USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 36
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Prof. Tyler, in his edition of "Stephens on Pleading," remarks that "the love of innovation carried its abolition in New York, and that other States have followed in this barbaric empiricism."
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tice was a jealous God, deaf to the entreaties of her suitors, unless they prayed according to established forms." "The most skilful pleader was he who most deceitfully and ingeni- ously concealed from his adversary, until the moment of trial, all suggestions of the real nature of the action." Many a suit was decided and many a suitor was ruined upon the pleadings and against the merits. Slight variance between pleadings and proofs was fatal. The lawyers got pay in proportion to the extent of the web of words which they spun. It is questionable that the old science of pleading did much to defeat justice, to render lawyers hateful to the community, and to bring the courts into disrepute.
However, while the Legislature tried to meet some of the objections of the jurists and lawyers, the new Code of Pro- cedure eventually came into effect and proved to be simpler than those who had protested had ever supposed it would.27a As years went by it was made more complicated by the many legislative interferences it had to endure.
The new plan of operating an enlarged Supreme Court did not, however, prove quite satisfactory. Fault was found with the existence of eight independent and equal branches-the General Term- of the Supreme Court. There was no co- ordination; no central administrative control; hence it was not unusual to find that the decisions of the eight separate courts clashed deploraby. There were frequent discordant and inconsistent opinions. Not only did these bring "justice into ridicule," but appeals accumulated, seriously overcrowd- ing the calendar of the higher court, and bringing expense and vexation to the suitor. Moreover, the general inclination was to yield little respect-far from the meed each deserved- to the decisions of a court which seemed to be only an eighth of a court. So the division of the State into eight judicial
27a. The commissioners appointed to codify the entire law-consisting finally of David Dudley Field, William Curtis Noyes and Alexander W. Bradford-reported, in 1865, a Civil Code, a Penal Code and a Code of Criminal Procedure, thus forming, with the Code of Procedure a com- plete written system of law. None of these were adopted under the Consti- tution of 1846, except the Code of Procedure.
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districts28 was a failure, so far as the operation of the General terms of the Supreme Court within them between 1847 and 1870 goes.
The situation was remedied in 1870, though the eight judicial districts were preserved. The many changes pro- vided by the revised Judiciary Article of 1869 have been amply stated in Chapter XXXI, which reviews the Constitutional Convention of 1867. So far as it affected the General Terms of the Supreme Court, the provisions of the new judiciary article abolished four of the General Terms. The State was divided into four judicial departments, embracing the fol- lowing judicial districts: First Department, the city and county of New York, being the First Judicial District; Sec- ond Department, the counties of the Second Judicial District ; Third Department, the counties of the Third, Fourth and Fifth Judicial districts; Fourth Department, the counties of the Sixth, Seventh and Eighth Judicial districts.29 In each of these four departments a General Term was organized. Each was composed of a presiding justice and two associate jus- tices, who were selected and designated by the Governor from the whole Supreme Court bench of the State. The presiding justice thus designated served during his judicial term, and
28. Judicial Districts, 1847-1870:
First-City and County of New York.
Second-Counties of Richmond, Suffolk, Queens, Kings, Westchester, Orange, Rockland, Putnam, Dutchess.
Third-Counties of Columbia, Sullivan, Ulster, Greene, Albany, Scho- harie and Rensselaer.
Fourth-Counties of Warren, Saratoga, Washington, Essex, Franklin, St. Lawrence, Clinton, Montgomery, Hamilton, Fulton and Schenectady.
Fifth-Counties of Onondaga, Oneida, Oswego, Herkimer, Jefferson and Lewis.
Sixth-Counties of Otsego, Delaware, Madison, Chenango, Broome, Tioga, Chemung, Tompkins, Cortland and Schuyler.
Seventh-Counties of Livingston, Wayne, Seneca, Yates, Ontario, Steuben, Monroe and Cayuga.
Eighth-Counties of Erie, Chautauqua, Cattaraugus, Orleans, Niagara, Genesee, Alleghany and Wyoming.
29. On June 1, 1884, the Fifth Department was created, composed of the counties of the Seventh and Eighth Judicial Districts.
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associate justices held office for five years, unless their Su- preme Court terms expired sooner. General Terms were to be held once in each year in each department. The General Term thus created had jurisdiction to hear and determine appeals from the judgments and orders of the Circuit Courts ; from Special Terms of the Supreme Court; from the Courts of Oyer and Terminer, and also from the county courts within the department, except the First, which had a special status, as to county court. Appeals from the General Terms lay to the Court of Appeals; in excepted classes, however, the General Term was the court of final resort in many cases.
This appellate branch of the Supreme Court was organ- ized by Chapter 409 of the Laws of 1870, and its existence terminated with the year 1895, after which its functions were performed by the Appellate Divisions of the Supreme Court, as at present. The bench of the General Term was the aspi- ration of the abler jurists of the Supreme Court; and as a whole, it should be regarded as composed of the most ex- perienced judges of the Supreme Court of the period. The extended terms of the Supreme Court justices, first for eight years and subsequently to fourteen years, did not detract from the ability or strength of the General Term bench be- cause it became the settled judicial policy of the State to re- tain on that appellate bench men of recognized judicial fitness and ability for long periods. A justice who went to the Gen- eral Term bench sat there, as a rule, until the end of his term, and, if reëlected, was more than likely to be redesig- nated ; in fact, it became almost unwritten law, and most Gov- ernors looked upon it as the will of the electorate that a re- elected General Term justice should be reassigned.
During the quarter century of existence of this branch of the Supreme Court, only forty-five jurists were designated to it, notwithstanding that it was a bench of twelve and latterly fifteen members. Seventeen served as presiding jus-
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tice : Three in the First Department, two in the Second. three in the Third, seven in the Fourth and three in the Fifth in twenty-five years. Hon. Joseph F. Barnard served as presid- ing justice (of the Second Department) for twenty-three years, no other justice equalling this; Presiding Justice Learned served in the Third Department for sixteen years (1876-1891); Justice Noah Davis was on the General Term bench for fourteen years; Justice Charles H. van Brunt was presiding justice of the First Department from 1887 until it was abolished in 1895. Later he was reassigned to the Ap- pellate Division, remaining presiding justice of it until 1905. Joseph Mullins was presiding justice of the Fourth Depart- ment from 1870 to 1880, eleven years; James C. Smith sat in the Fourth and Fifth Departments from 1877 until 1888. Some of the justices served on General Term for nearly the whole of their judicial careers. John R. Brady served from 1873 until his death in 1891 ; Charles Daniels, from January I, 1874, until 1895, and later, until 1902, on the Appellate Di- vision bench. Justice Jackson O. Dykman sat in the Second Department for twenty years, from 1876; Calvin E. Pratt served from January, 1884, until December, 1895; Augustus Bockes served in the Third Department for about fifteen years (1874-1888); John L. Talbott, for about as long in the Fourth Department, part of the time as presiding justice. A complete list of the whole of the General Term bench, 1870 to 1895, is at foot.30 Those who are familiar with the courts
30. Justices of the General Terms of the Supreme Court, 1870-1895: First Department-Presiding Justices : Daniel P. Ingraham, 1870-73; Noah Davis, 1874-1886; Charles H. van Brunt, 1887-1895.
Associate Justices : Albert Cardozo, 1870-72; George G. Barnard, 1870-72; John R. Brady, 1873-91; Noah Davis, 1873; Charles Daniels, 1874-91; George C. Barrett, 1880 and 1892-93; Willard Bartlett, 1887-90; Morgan J. O'Brien, 1892-95; David L. Follett, 1893-94; Alton B. Parker, 1894-95.
Second Department-Presiding Justices : Joseph F. Barnard, 1870-1893; Charles F. Brown. 1894 and 1895.
Associate Justices : Jasper W. Gilbert, 1870-73, 1876-83; Abraham B. Tappan, 1870-75; John L. Talcott, 1874-75; Jackson O. Dykman, 1876-95; Calvin E. Pratt, 1884-95.
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of that period will recognize in the list the names of some of New York's greatest jurists of that generation.
The Constitution of 1894 abolished the General Terms and rearranged the judicial departments. The State was divided into four departments,31 in each of which the functions of the General Term were to be performed by a new appellate branch of the Supreme Court, known as Appellate Divisions. Each of the four Appellate Divisions was to consist of a pre- siding justice and four associate justices, excepting that the larger requirements of the First Department were to be met by a presiding justice and six associates, only five to sit in court at one time. The offices were filled in the same manner as formerly, i. e., by designation by the Governor. And the underlying conditions that governed the appointments, the repute of the designate as a jurist, and so forth, were much as they were under the General Terms. At foot is the roster of the Appellate Divisions from 1896 to 1924.32
Third Department-Presiding Justices: Theodore Miller, 1870-75; William L. Learned, 1876-91 ; Stephen L. Mayham, 1892-95.
Associate Justices : Platt Potter, 1870-75; John M. Parker, 1870-73; Augustus Bockes, 1874-88; Douglass Boardman, 1876-84; Judson S. Landon, 1885-91; Charles R. Ingalls, 1888-90; Stephen L. Mayham, 1891-95; John R. Putnam, 1892-95; D. Cady Herrick, 1892-95.
Fourth Department-Presiding Justices : Joseph Mullin, 1870-80; John L. Talcott, 1881-82; James C. Smith, 1883; George A. Hardin, 1884-95.
Associate Justices : Thomas A. Johnson, 1870-72; John L. Talcott, 1870-73, 1876-80, 1883; E. Darwin Smith, 1873-76, 1883; Jasper W. Gilbert, 1874-75; James C. Smith, 1877-82; George A. Hardin, 1881-82; Douglass Boardman, 1884-86; David L. Follett, 1884-86; Celora E. Martin, 1887-95; Milton H. Merwin, 1887-95.
Fifth Department-Presiding Justices : James C. Smith, 1885-87 ; George Barker, 1888-89; Charles C. Dwight, 1890-95.
Associate Justices : George Barker, 1885-87; George B. Bradley, 1885- 88, 1893-98; Charles C. Dwight, 1888-89; Albert Haight, 1888, 1893-94; Francis Macomber, 1889-92; Thomas Corlett, 1890-91; Loran L. Lewis, 1892 and 1895; Hamilton Ward, 1895.
31. Judicial Departments Under Constitution of 1894-First Department comprises County of New York; Second Department comprises the 2nd and 9th Judicial Districts; Third Department comprises the 3rd, 4th and 6th Judicial Districts; Fourth Department comprises the 5th, 7th and 8th Ju- dicial Districts.
32. Appellate Divisions of Supreme Court, 1895-1924:
First Department-Presiding Justices : Charles H. van Brunt, 1895;
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It is hardly necessary here to trace the development of the Supreme Court under the Constitution of 1894, the provisions of which still govern it; the functions, expansions and plans of and for the Supreme Court are sufficiently stated in earlier chapters of constitutional history, particularly in Chapter XXXIII, the Constitution of 1894; Chapter XXXIV, the Constitutional Convention of 1915; Chapter XXXV, the ex- isting Constitution ; and Chapter XXXVI, the Judiciary Bill of 1925. The Convention of 1915 recommended an enlarged Appellate Division, in the First and Second Departments, where the volume of work accomplished was astounding. The convention also wished to more clearly establish the ju- dicial functions of the Court of Appeals and the Appellate Divisions of the Supreme Court, and "prevent the impairment of the line of demarcation between the general appellate courts and the Court of Appeals." Its recommendations were
redesignated, 1897; Morgan J. O'Brien, 1905; Edward Patterson, 1906; George L. Ingraham, 1910; John Proctor Clarke, 1916.
Associate Justices : George C. Barrett, 1895; George L. Ingraham, 1895 ; Edward Patterson, 1895; Morgan J. O'Brien, 1895; Charles C. Dwight, 1895; Pardon C. Williams, 1895; William Rumsey, 1895; Alton B. Parker, 1897; Chester B. Mclaughlin, 1897; George C. Barrett, redesignated, 1899; Edward W. Hatch, 1900; George L. Ingraham, Edward Patterson and Mor- gan J. O'Brien, redesignated in 1901; Frank C. Laughlin, 1901; Chester B. Mclaughlin, redesignated 1902; Edward W. Hatch, redesignated in 1905; John Proctor Clarke, 1905; James W. Houghton, 1905; George L. Ingra- ham and Edward Patterson, redesignated in 1905, also Frank B. McLaugh- lin, in 1906; Francis M. Scott, 1906; John S. Lambert, temporary designa- tion, 1906; Chester B. Mclaughlin, redesignated in 1907 and 1909; Frank C. Laughlin, redesignated in 1909; Victor J. Dowling, 1910; Nathan L. Mil- ler, 1910; John Proctor Clarke, redesig, 1911; Francis M. Scott, redes. 1912; Henry D. Hotchkiss, 1913; Chester B. Mclaughlin, redes. 1914; Frank B. Laughlin, redes. 1914; Victor J. Dowling, redes. 1915; Walter Lloyd Smith, 1916; Francis M. Scott, redes. 1917; Alfred R. Page, 1917; Vernon M. Davis, 1917; Clarence J. Shearn, 1917; Edgar S. K. Merrill, 1919; Frank C. Laughlin, redes. 1919; Victor J. Dowling, redes. 1920; Eugene A. Phil- bin, 1920; Walter Lloyd Smith, redes. 1921; Samuel Greenbaum, 1921 ; Alfred R. Page, redes. 1022, resigned May 7, 1923; Edward R. Finch, 1923; John V. McAvoy, 1923; Francis Martin, 1923; Edgar S. K. Merrill, redes. 1924; William P. Burr, 1925.
Second Department-Presiding Justices: Charles F. Brown, 1895; William W. Goodrich, 1897; Michael H. Hirschberg, 1903; Almet F. Jenks. 1911; Abel E. Blackmar, 1921 ; William J. Kelly, 1923.
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not adopted, but the same purpose underlay the recommen- dations of the Judiciary Constitutional Convention of 1921, the report of which body to the Legislature was the basis of the Cole Judiciary Bill of 1925.
Of course, alteration or reorganization of the judicial sys- tem does not mean that the State is dissatisfied with the ser- vice, the personal efficiency and probity of the bench. Far from it. There is abundant testimony that New York jurists, as a. whole, are among the most upright, self-sacrificing, sin- cere, earnest and capable public servants of the State, men whose lives are devoted-regardless of monetary compensa- tion-to the vital purpose of maintaining respect for law and order, and of protecting the rights of all men, rich and poor, who are within their jurisdiction. Under the appointive sys- tem the decisions of the Supreme Court of New York gained international attention; its great jurists were universally respected outside the State, where merit could be judged on scales that were not held down by political bias. And
Associate Justices : Edgar M. Cullen, 1895; Calvin E. Pratt, 1895; Willard Bartlett, 1895; Edward W. Hatch, 1896; George B. Bradley, 1896; Willard Bartlett, redesignated, 1897; John Woodward, 1897; Michael H. Hirschberg, 1900; Almet F. Jenks, 1900; Albert H. Sewell, temporary desig- nation, 1901; Warren B. Hooker, temporary, 1902; Willard Bartlett, re- designated, 1902; John Woodward, redesignated, 1902; Warren B. Hooker, 1903; Adelbert P. Rich, temporary, 1904; Nathan L. Miller, temporary, 1904; Almet F. Jenks, redesignated, 1905; William J. Gaynor, 1906; redesig- nated 1908; John Woodward, redesignated 1908; Joseph A. Burr, 1908: Edward B. Thomas, 1909; William J. Carr, 1910; Michael H. Hirschberg, 19II; Adelbert P. Rich, 1909; John Woodward, redes. 1913; Joseph A. Burr, redes. 1913; Luke D. Stapleton, 1914; Harrington Putnam, 1914; Edward B. Thomas, redes. 1914; William J. Carr, redes. 1915; Adelbert P. Rich, redes. 1914; Isaac N. Mills, 1916; Abel E. Blackmar, 1918; William J. Kelly, 1918; Adelbert P. Rich, redes. 1919; Walter H. Jaycox, 1919; Har- rington Putnam, redes. 1919; David F. Manning, 1921; Charles H. Kelby, 1922; J. Addison Young, temp., Jan. 1, 1922; Isaac M. Kapper, temp., Jan. 8, 1923; Adelbert P. Rich, redes. 1924; Walter H. Jaycox, 1924.
Third Department-Presiding Justices : Charles E. Parker, 1895; re- designated, 1901; Walter Lloyd Smith, 1907; John M. Kellogg, 1916; Aaron V. S. Cochrane, 1922.
Associate Justices : D. Cady Herrick, 1895; Judson S. Landon, 1895; John R. Putnam, 1895; Milton H. Merwin, 1895; Samuel Edwards, tem- porary, 1896; S. Alonzo Kellogg, temporary, 1899; Walter Lloyd Smith,
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although the elective system brings the judges at stated times before the electorate, and in that way gives some basis of argument for those who oppose the elective system of filling judicial office, the judicial history of New York State during the last seventy-five years is emphatic answer of the charge that political expediency in any way enters into judicial find- ings in this State. The Constitutional Convention of 1921 was composed wholly of lawyers, and included some of the greatest lawyers of the State. In their report to the Legis- lature they refer to the Supreme Court as "the great historic judicial tribunal of the State." As to the elective system, the convention reported that it "was not prepared to suggest that the practical experience of the State during the past three-quarters of a century under the elective system had not been satisfactory, and had not resulted in the selection of scholarly, competent, industrious, impartial, and incurrupt- ible judges. On the contrary, the record of the judiciary of
1899; S. Alonzo Kellogg, 1900; Samuel Edwards, 1900; Emory A. Chase, 1901; Edgar L. Fursman, 1901 ; Alden Chester, 1902; Walter Lloyd Smith, redesignated, 1902; George F. Lyon, temporary, 1903; James W. Houghton, 1903; John M. Kellogg, 1905; Aaron V. S. Cochrane, 1905; Albert H. Sewell, 1907; Henry B. Coman, temporary, 1907; Alden Chester, redesig- nated, 1907; James W. Houghton, 1909; John M. Kellogg, redes. 1911; James A. Betts, 1911; Albert H. Sewell, redes. 1912; Wesley O. Howard, 1913; George F. Lyon, 1913; John Woodward, 1914; Aaron V. S. Coch- rane, 1916; George F. Lyon, redes. 1918; Henry T. Kellogg, 1918 (Acting Presiding Justice in 1922) ; John S. Woodward, redes. 1919; Charles C. van Kirk, 1921 ; Michael H. Kiley, 1921 (died May 19, 1923) ; Harold J. Hin- man, 1922; Gilbert D. B. Hasbrouck, temp., 1922-24; George McCann, vice Kiley, deceased, apptd. Aug. I, 1923.
Fourth Department-Presiding Justices : George A. Hardin, 1895; William H. Adams, 1899; Peter B. McLennan, 1903; redesignated 1907; Frederick W. Kruse, 1914; Irving G. Hubbs, 1923.
Associate Justices : William Rumsey, 1895; David L. Follett, 1895; William H. Adams, 1895; Manley C. Green, 1895; Hamilton Ward, 1896; Peter B. McLennon, 1898; Alfred Spring, 1899; Edwin A. Nash, temporary, 1899; Walter Lloyd Smith, 1899; Frank C. Laughlin, 1900; Pardon C. Williams, 1900; William Rumsey, redesignated, 1901; Frank H. Hiscock, 1901; John M. Davy, temporary, 1901; Edwin A. Nash, temporary, 1902 and 1903; Martin L. Stover, 1903; Alfred Spring, redesignated 1903; Pardon C. Williams, redesignated 1905; Edwin A. Nash, 1905; Frederick W. Kruse,
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the State seemed to the members of the convention, all of whom are lawyers and have devoted their lives to the science of law and its practical application, to be commendable and such as should be generally satisfactory to the people of the State." This authoritative testimony may be strengthened by the realization that most of the capable jurists would have been able to earn far more than their judicial stipend if they had remained in private practice of law. Public service en- tails self-sacrifice; it demands the highest grade of service, but generally puts compensation on a short-weight scale.
1906; James W. Robson, 1907; Alfred Spring, redesignated 1909; Pardon C. Williams, redesignated 1909; Nathaniel Foote, 1912; Frederick W. Kruse, redes. 1911; James A. Robson, redes. 1912; John S. Lambert, 1913; Edgar S. K. Merrill, 1914; Nathaniel Foote, redes. 1917; Pascal C. J. de Angelis, 1917; John S. Lambert, redes. 1918; Irving G. Hubbs, 1919; William W. Clark, 1920; Rowland W. Davis, 1921; Charles B. Sears, 1922; Leonard C. Crouch, 1923; Harry L. Taylor, temp. desig., Aug. 22, 1924.
CHAPTER XXXIX. THE COURT OF CHANCERY.
The Court of Chancery, which was probably the most obnoxious of the Crown courts in provincial days and the one so regularly condemned by resolution in the provincial As- sembly, was deemed, by the framers of the State Constitution, to be one of the necessary institutions. A State Court of Chancery was not specifically authorized by the Constitution of 1777, but the court was recognized as existent, and Robert R. Livingston (2) was appointed to the office of chancellor. Provision for his salary was made, and it was provided that the chancellor should hold no other office, save that of Dele- gate to the General Congress upon special occasions. In May, 1788, the court was reorganized by the Convention of Representatives of the State of New York. Masters and examiners were appointed by the Council of Appointment, and registers and clerks by the chancellor. Johnson, in his preface to the first volume of his "Chancery Reports," says that little business was transacted in the Court of Chancery prior to its organization in March, 1778, but Justice Charles H. Truax, in his researches, as stated in his paper, "Judicial Organization and Legal Administration of New York, From 1776 to the Constitution of 1846," found a book of Chancery Minutes, covering four years from June, 1785;1 and he also
Chapter XXXIX, a brief sketch of the "Court of Chancery, is drawn from Justice Charles H. Truax's "Judicial Organization and Legal Ad- ministration From 1776 to the the Constitution of 1846"; Proctor's "First Trial Term in the Old Court of Chancery," "Albany Law Journal," 1892; Jefferson's "Letters"; Irving Browne, in "Public Service of the State of New York"; "Am. Bar Assn, Jnl," Dec., 1924, "Presentation of Kent Memorial Tablet," "New York Civil List," 1888; and official records.
I. The earliest record relating to the Court of Chancery that I can find is the book of "Chancery Minutes, June, 1785, to April, 1789." The court was held at the City Hall in the City of New York. The first record is dated June 10, 1785, and is in the cause of Thomas Vardill vs. Lambert Moore. Mr. Lewis appeared for the "complainant," and Mr. Troup for the
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found one book of records prior to the Revolution, giving the minutes of the provincial Court of Chancery from April 5, 1770, to January 9, 1776. The last entry in this book is of an application made before "His Excellency William Tryon, Esq., Captain-General and Governor in Chief in and over the Prov- ince of New York and the Territory depending thereon in America, Chancellor and Vice-Admiral of the same" for the appointment of a guardian for two infants, on the 9th day of January, 1776. Justice Truax was of the opinion that no chancery business was transacted during the Revolution; in any case what court records there were of New York City dur- ing the period of its occupation by British troops (September 16, 1776, to November 25, 1783) were carried away by the British when they left. And Judge Truax did not think that our first Chancellor Livingston, could have done much court work prior to the evacuation, because of the condition of the country, and also because much of his time was occupied by other public responsibilities. For instance, he was secretary of foreign affairs for the United States in 1781-83. There was little difference in the business of the provincial and State Courts of Chancery apparently, so far as can be judged by the
defendant. In the next cause Mr. B. Livingston appeared for one side and Mr. Hamilton for the other. Six matters came before the court on that day. The counsel that appeared, besides those mentioned above, were Mr. Cozine and Mr. Dunscomb; Mr. Burr had a cause in court the next day. On the 28th of June, the court was held at Clarmont, Manor of Livingston. On the 28th and 29th days of July it was held in the court house in the City of Albany, where Mr. Lansing, Mr. Cook, Mr. B. Livingston, Mr. Troup, Mr. Lush, Mr. Benson, Mr. Burr, and Mr. Lewis appeared as coun- sel. On the 17th day of August court was again held at Clarmont, but it was back in New York on the Ist of October, on which day the only busi- ness transacted was a motion by Mr. Lewis, of counsel for complainant in the cause of Connor vs. Smith that "publication pass" on the 'th day of October, and Mr. B. Livingston, of counsel for defendant, consenting, the motion was granted. On the IIth day of November, 1785, it was ordered that Mr. Edward Livingston, one of the attorneys of the Supreme Court, be examined by Mr. Lewis and Mr. Livingston as to his qualifications for ad- mission as a solicitor in chancery. On the 24th day of April, 1786, they reported that they had examined him and found him of sufficient ability to practice as a solicitor and counsel in the court, and he was accordingly ad- mitted as such. On the 7th day of December, 1785, at a court of chan-
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