USA > New York > New York City > History of the Court of common pleas of the city and county of New York : with full reports of all important proceedings > Part 12
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After this change was made, Gov. Nicolls appointed as the first Mayor of New York, Thomas Willet, an Englishman, who was thoroughly acquainted with the Dutch language, having been employed previously by Stuyvesant in important negotiations. He was a man of ability, firmness and integrity, whose direct descend- ant, as I saw by the newspapers a month or two ago, died in Jersey City at the advanced age of 90; and, Willet with the exception of introducing the trial by the jury, carried on the Court as it had been before, under the Dutch law and in the Dutch language.
Another feature was afterwards added to the Court. In the Mayor's Court in London it was found as the Mayors were generally laymen and frequently changed, they were not well informed in respect of the law, and that it was necessary to have a permanent officer who was well acquainted with it attached to the Court, who could assist the Mayor, and who would see that the records of the Court were properly kept; and, for that purpose, the office of Recorder was created, and that officer thereafter sat with the Mayor as a permanent member of the tribunal to whom the Mayor could refer when any question or doubt arose respecting the law. This was thought to be also desirable in New York; and in 1683 the corporation of the city sent a petition to Gov. Dongan for certain municipal changes, among the rest that a Recorder might be appointed to assist the Mayor in the Mayor's Court, which the Governor granted, and appointed James Graham, who was one of the petitioners, Recorder. He was a Scotchman who came to the Colony in 1678, and Mrs. Lamb in her " History of the City of New York," says of him that " he
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RUFUS B. COWING.
ROBERT A. VAN WYCK.
JAMES G. O'GORMAN.
GEORGE F. ROESCH.
was the second son of the Marquis of Montrose; " that "he was endowed with brilliant intellectual qualities, was witty, chivalrous, communicative; overflowed with anecdote; that he was a lawyer who had already at- tained distinction at the bar, and a man of great dignity; of fine presence and a master of rhetoric, who in his tastes, habits and methods of thought, was a fair type of the ancient nobility of Great Britain."
This is a fine picture of an attractive and very accom- plished man; but not one word of it is true. The Mar- quis of Montrose had no second son, and Lord Bella- mont, who was then the Governor of the Province, in one of his letters to the Board in London that had the affairs of the Colony in charge, says that Graham was bred to a trade and neither to learning nor to the law, which he gives as the reason of his incompetency in the two offices which he held, of Attorney-General and Recorder. He never attained any distinction whatever at the bar, and procured those offices entirely through personal and political influence. On the contrary, Lord Bellamont says that the government lost many cases through Graham's inability as Attorney-General to draw up the papers properly; and Parmentier, who was an educated and well-read lawyer, ridiculed Graham for his ignorance of the law. As to his brilliant intel- lectual qualities, a master of rhetoric, witty, chivalrous, a man of fine presence and of great dignity, I have in my researches found no allusion to any of these charac- teristics. Mrs. Lamb refers to none; and finally, in respect to this first Recorder of the city of New York, Lord Bellamont removed him from the office of Attor-
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ney-General and Recorder because he was incompetent and corrupt.
To follow the history of the Court from this period to the year 1823 would be to go over all the Mayors and Recorders who sat in it as Judges. It will suffice to say that many of them were distinguished men, such as Edward Livingston, the author of the penal code of Louisiana, Chancellor Kent, Chief Justice Jones, Jacob Radcliffe, Judge Josiah Ogden Hoffman, De Witt Clinton, Cadwalader D. Colden. and Peter A. Jay. In the year 1823 it was felt that the presiding or Chief Judge who had theretofore been the Mayor on the civil side of the Court, ought to be a lawyer, for out of the thirty-five Mayors who up to that time had presided in it as Judges, only three of them had been lawyers. Accord- ingly in that year, an act was passed creating what was called the First Judge of the Court of Common Pleas, who was required to be of the degree of counsellor-of- law, and John T. Irving, a brother of Washington Irving, was appointed, who wasstill on the bench when I came to the bar fifty-eight years ago. The effect of this was that thereafter the Recorder presided in the criminal part of the Court, or, as this was afterwards called, the Court of Sessions, and Judge Irving sat in the civil part thereafter known only as the Court of
Common Pleas. The Recorder and the First Judge could lawfully sit in either Court, but neither did, and practically, they became separate tribunals. Judge Irving was so highly esteemed by the bar as a Judge that the business in his branch of the Court increased so largely, that in 1834, an Associate Judge was created, to which position Michael Ulshoeffer was
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appointed, and when Judge Irving died in 1838, after being upon the bench for seventeen years, an act was passed by which another associate Judge was created, and Judge Ulshoeffer became First Judge, and Daniel P. Ingraham was appointed Associate Judge. The business grew still greater, and in 1839, another Associ- ate Judge was created, Wm. Inglis was appointed, who was my immediate predecessor. The Court then con- sisted of three Judges which by the Constitutional Amendment of 1867 was increased thereafter to six Judges.
I have now, sir, done what I agreed to do, brought the history of the Court down to the time that I became a member of it, which I was for forty-two years. Of that period in its history, it is more befitting that another than myself should speak. I might with propriety refer to the many distinguished lawyers now passed away, who came before me during that long period, and as a survivor, pay my tribute to their memory by pointing out their distinguishing character- istics, either as lawyers, or as advocates. It would be a pleasant exercise of memory to recall the displays I have witnessed of forensic eloquence, of intellectual power, of legal acuteness and legal learning, of the adroitness, skill and ability with which cases were managed, and the tedium of trial relieved by flashes of wit or an advantage gained by a telling sarcasm; but to do so would exceed the time I have prescribed to myself.
Of course, sir, I cannot realize without some feeling, that a Court will cease to exist to-morrow, in which so many years of my life were passed, in which I have
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seen such displays of legal ability, and I might say genius, of which I have so many memories both of law- yers and of Judges. Of the eighteen Judges who were associated with me in the Court, seven only now sur- vive, and of the lawyers who came before it and have now passed away, I recall many, who in natural endow- ment, legal knowledge and legal training, would in any country where the law is cultivated and respected, be regarded as distinguished ornaments of their pro- fession. All of them I knew personally; some of them most intimately; and when at my advanced age I recall what they were in the forensic arena, the charm of their society in private life, with all the associations and memories of my past professional career which an occasion like this awakens, I may in closing my remarks give adequate expression to it by quoting a verse of a well-known song of the poet Moore:
" I feel like one who treads alone A banquet hall deserted ; Whose lights are fled, whose garlands dead And all but he departed."
ADDRESS OF MR. WILLIAM ALLEN BUTLER.
I beg leave to second the resolutions which have been offered by my brother, McClure. The intervening history of the Court, to which we have just listened, adds additional interest to the dignity of this occasion. Ten years ago this very day, December 30th, 1885, at this very hour, and in this very place, the members of the bench and bar assembled to give expression to their respect for Chief Justice Charles P. Daly on his retirement from the bench of this Court (with which
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he had been connected for a period of nearly fifty-two years) under a mandate of the Constitution which limited his term of service. After a decade he is, happily, here with us, a witness to the retiring of the Court itself under the mandate of the present Constitu- tion which has decreed its extinction as a separate branch of the judiciary of this State and city, and sum- moned its Judges to another sphere of judicial labor. In the expiring hours of this year, we are closing a most important and interesting chapter in the annals of our jurisprudence, and we are here with one accord, so far as it is in our power, to set the stamp of appro- bation upon the completed record of this Court.
It is altogether fitting that the event be thus solemnized. What the ex-Chief Justice has read as the result of his researches and the fruits of his memory, while it may not have been beyond the knowl- edge of some of us as to the origin and course of development of this Honorable Court, was none the less instructive and interesting.
The familiar designation of the "Common Pleas" had its origin in an early period of the jurisprudence of England. Sir Edward Coke claimed for the Court of Common Pleas an existence ante-dating Magna Charta. Lord Campbell assigns its origin to the reign of Edward I., "the English Justinian," in the latter part of the thirteenth century. From that time it has held its place as the title of one of the great judicial depart- ments of Great Britain and in the recent reorganization of the English Courts the time-honored appellation is perpetuated in the "Common Pleas Division." With us, the name of "Common Pleas," long ago adopted
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and naturalized as designating a part of our judicial sys- tem, is a familiar sound, interwoven with all our studies of the law as a science and with all our practice at the bar. Courts of Common Pleas in the different counties of the State as they existed in the Colonial days, were continued by the Revised Statutes for many years. But especially was the "Common Pleas" a household word in our municipality, with a touch of homlier significance than ever belonged to the terms "Superior " or "Supreme" because more nearly kindred to the common interests and rights over which it threw the imperial ægis of the law.
Speaking for the older members of the bar, I may be permitted to recall the associations of this Court with the City Hall, which has been more fortunate in escaping a projected transplantation. An outgrowth of the Mayor's Court, and including that official, the Recorder and the Aldermen among its nominal mem- bers, the proper place for the sitting of the Court of Common Pleas was the chief municipal building and it was in the City Hall that its terms were held. During its residence there and after it had outgrown con- nection with the city officers and was composed of its own Judges, it attracted to itself that large share of important litigations which it has always retained. My earliest professional recollections of the Court are associated with Judge Ulshoeffer and Judge Ingraham as its presiding Judges, and with such leaders of the bar as James T. Brady, James W. Gerard, Francis B. Cutting, Charles O'Conor, and that admirable lawyer whose peculiar field of practice was the Common Pleas, Augustus F. Smith. I well remember one of my own
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first cases, a very notable one, before Judge Woodruff and a jury in which, during a protracted trial, the legal acumen of Marshall S. Bidwell, Daniel Lord and Benjamin F. Butler were supplemented by the match- less forensic eloquence of Ogden Hoffman. True, he strayed off, to my dismay, on the eve of his summing up, to a Saint Nicholas dinner, leaving me to spend the midnight hours on a brief whose dry details he transmuted into a golden current of speech by the magic of that native gift of persuasion in which he " snatched a grace beyond the reach of Art." If I had taken any exception to his treatment of myself it was cured by the verdict. I might name others who are familiar to my recollection. But they have passed away. When the Court was removed to this Court House, many whom I see here to-day will, with me, bear witness to the unvarying courtesy, the strict integrity and the conspicuous ability with which Chief Justice Charles P. Daly administered the law, and to the exhibition of the same qualities by those who have occupied the bench of this tribunal.
Perhaps we ought not to be unmindful that such incidents as the passing away of Courts are no novel- ties in our juridicial history. Since my own admission to the bar, in 1846, I have witnessed the extinction of the Court of Errors, a tribunal modeled after the highest Appellate Court of England and coeval with the beginning of our constitutional government. The Court of Chancery with all its immemorial associations and vast powers, went out of existence at the same time; both of these time-honored tribunals were swept away by the tide of legal reform but not oblivion. The
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authority of their decisions was never more controlling than to-day; and they enshrine the names and memories of such jurists as Spencer and Bronson, Verplanck, Kent and Walworth. So it will be with this Court. It will hold its place in history; its Judges will hold their place in the long line of judicial succes- sion. With our natural regrets at the termination of its existence we can only hope that the new departure to follow in our judiciary system may be a step forward in the onward march of American civilization. In any event, we are sure that you, Mr. Chief Justice and your associates on the bench, will carry with you the respect and esteem of the bar of this city and that in your new sphere of service there will be no lowering of the high standard of judicial integrity and ability which will always be imperishably linked with the now historic Court of Common Pleas.
ADDRESS OF MR. WM. B HORNBLOWER.
MR. CHAIRMAN AND BRETHREN OF THE BAR :- After what has been said so well and so eloquently by my brother, Butler, and after the remarks that have been made by the late Chief Justice of this Court, and after the resolutions that have been so forcibly and eloquently presented by my brother McClure, my task is indeed a simple one; I can but echo what has already been said. My recollection of this Court does not extend back further than the judicial life of the present Chief Justice of the Court. I tried my first case in this Court before one who is still a member of the bench of this tribunal, and I can therefore speak of the history of the Court only from what I have heard
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and learned from the reports and from the traditions of the bar. The traditional, conservative spirit of our profession has hitherto spared this Court from demolition. We cling tenaciously to old forms and old names; and we do so because we believe-and experience has shown-that old forms and old names have their value. But we get tired of being asked the continual question from our clients, and the world at large: Why do you do this ? Why do you retain these Courts ? Why do you have a Court of Common Pleas and a Superior Court and a Supreme Court ? All with the same jurisdiction, except for certain technicalities which it defies the most astute lawyer sometimes to find out; and so when the profession is finally wearied of answering the question, why, they yield to the popular sentiment and allow the old landmarks to be swept away. But, sir, it is eminently appropriate that, when such a constitutional change in the judiciary system of the State is about to take place, some public notice of the change should be taken by the members of the bar. It is especially fitting that when this change involves the passing out of existence of two of the principal Courts of this city and county-the Court of Common Pleas for the City and County of New York and the Superior Court of the City of New York-that a tribute should be paid by the younger as well as the older members of the bar to the past records of those Courts on behalf of the bar and the community.
These two courts, sir, have become part of the his- tory of this city and county and they will remain part of that history, and their decisions will remain part of the jurisprudence of this State for all time to come.
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This Court of Common Pleas traces its record back, as we are told by the venerable ex-Chief Justice of the Court who still lives and moves among us, far beyond the foundations of the republic. My function to-day is not to relate the history of this Court. I shall refer- and I trust I may do so without invidious comparison- to one period in the history of this Court which has always made a great impression on my mind; I refer to that period covered by the Reports of E. D. Smith, containing the opinions of that strong triumvirate then in the prime of early manhood-Judges Ingraham, Daly and Woodruff. The four volumes of E. D. Smith's Reports, I do not think can be matched any- where for terse, vigorous, lucid and accurate statements of the principles of law. They will be found cited in the Court of Appeals Reports, I believe, more frequently than any other reports of the purely local Courts. Of that triumvirate, one-Judge Ingraham-became after- wards the Presiding Justice of the General Term of the Supreme Court for this department during the very stormy period of the history of the bench and bar; another-Judge Woodruff-subsequently served a term as a Judge of the Superior Court of the City of New York, and then, after a brief period of active practice at the bar, became a member of the Court of Appeals of this State and ended his career as Circuit Judge of the United States for the Second Judicial District, dying at the comparatively early age of sixty-three years, after a life of almost uninterrupted judicial labor; the third of the triumvirate, afterwards Chief Justice of this Court, is still with us, as has already been said, full of years and honors: no one can
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think and speak of the Court of Common Pleas with- out thinking of Charles P. Daly. Probably there are not a dozen men in this room who can remember the time when Charles P. Daly was not a Judge of the Court of Common Pleas. To this Court he gave, practically, the whole of his active life, retiring only when he had reached the constitutional limit of age, and then retiring with the respect and esteem of the entire profession. I shall not stop to enumerate the other distinguished Judges who have sat upon this bench, many of whom have subsequently adorned the benches of other Courts, some of whom are still living and two of whom are now able and useful members of the Supreme Court bench in this district. Nor would it be fitting that I should speak of those who now com- pose the membership of this Court, except to assure them, as has already been done, that they end their judicial careers in this tribunal with the thorough regard and respect of those who have had the pleasure of appearing before them, and that it is a source of sat- isfaction to us all to know that their services are not lost to the community and that they, as Justices of the Supreme Court will still continue to be useful and hon- ored public officials. There are many things in the new judicial machinery of the Constitution of 1894, which I, for one, would have had otherwise. I regret, for instance, that the Constitution has, by a hard-and-fast rule prevented us from availing ourselves of the judi- cial ability found among the Judges of these two Courts for use in the Appellate tribunal. But consti- tutional changes always work some injustice and hard- ship and some temporary evils. It has been pointed
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out by the ex-Chief Justice, and Mr. Butler, that the prototype of this Court-the Court of Common Pleas of Great Britain-traced its warrant from the Magna Charta, and so as this Court goes out of existence we desire to put upon record our tribute of respect and to assure them that they have followed in the footsteps set them by the eminent Judges of that tribunal whose name they bore and we desire to express our hearty good wishes to the members of the Court who pass to the Supreme Court and before whom we hope we shall be privileged for many years to come to practice in behalf of our clients and from whom we know that we shall always receive patient, careful and conscientious hearing.
ADDRESS OF MR. EDWARD LAUTERBACH.
MR. CHAIRMAN AND GENTLEMEN :- There is an air of solemnity in these proceedings which I think is by no means justified by the facts.
The nomenclature of the Court of Common Pleas is to be lost; its rules, which varied in some respects from the rules of other Courts, will no longer exist; the allotment of the Judges will be to special functions somewhat differing from those heretofore exercised; but the spirit that has animated the Court of Common Pleas and served to make it in public estimation what it is, its kindness and indulgence, its fairness and impartiality, its high tone and dignity will be carried with it and with its Judges into the new sphere of activity to which they have been transferred by recent constitutional provisions.
There is not to be an absorbtion or elimination of
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t his Court's best attributes. An apotheosis is to take place-a translation from one realm to another, neither higher nor greater though somewhat different.
When the Court of Common Pleas, with its untar- nished record, its ancient and interesting history, and all that has endered it to us above and beyond all others, becomes assimilated with another kindred tribunal, its individuality will tend to strengthen it, to fortify it, to add to its merit and happily without the extinction of any of those of its own distinguishing characteristics which have made the Court of Common Pleas for the City and County of New York the idol at least of the younger if not of all the members of the New York Bar.
No one more fitting to have delivered the principal address of the day than the nestor of our bar, Mr. Will- iam Allen Butler, could have been selected, for his career conjoined with that of his illustrious father, Mr. Benjamin Franklin Butler, the leader of the bar in his day, are coincident almost from the beginning to the very end with that of the Court in whose presence we now stand.
The addresses already made, the interesting history of the Court contained in the monograph which opens the first volume of E. D. Smith's Reports, and which is the result of the scholarly research of Mr. O'Calla- ghan and of the eminent former Chief Justice of the Court, supplemented as it is by the statement which the latter has just read to us, renders any further historical allusion or panegyric unnecessary.
It is, I assume, that as a representative of those mem- bers of the bar to whom this Court has been most helpful by encouragement and by precept, those to whom admis-
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sion to its portals was not accorded by the law school diploma, those whose struggling steps were unaided by special tuition and whose path to the cherished goal was not rendered easy by well qualified pedagogues and professors, those whose earlier experience after admission was limited more particularly to that acquired in the District Courts and in the former Marine Court, now the City Court, that I am called upon to express on their behalf the sincere gratitude owing by them to this Court for its special and thoroughly appreciated interest in their behalf.
Possessed of sole and final appellate jurisdiction in this class of cases it was here that swift redress from injustice to the litigant in these lower Courts, not always presided over, as is now the case, by men of ability and fairness, could be and was readily obtained; but what was of more consequence than their affirm- ance or reversal, was the knowledge that every case, however lowly the parties in interest, however trifling the amount involved, would secure patient and attentive consideration, and the young advocates of these causes the same generous treatment as was afforded to their leaders in the more important branches of the law.
On behalf of these, hundreds of whom owe subse- quent successful careers mainly to the encouragement so received, I bear a message of most sincere, earnest and heartfelt thanks and gratitude to, and of love and affection for the present members of this Court and their predecessors.
Nor do we fail to remember the contrast which was afforded by this Court during the period to which ref-
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erence was made to-day when other tribunals were unduly affected by political influences.
Never shaken in its serenity, never unmindful of judicial propriety and judicial decorum, unswerved by political power or influence, the temptations to the youthful practitioner to yield to the methods then prevalent was the more readily shunned because of the rigid standard of professional and judicial honor here maintained.
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