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 14
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We part with you, then, in name only. Your influ- ence, your teachings and the benefit of your example remain with us. We will continue to entertain that
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veneration and esteem for you which have been the delight not only of the older but the younger members of the bar as well.
I know I voice the unanimous and heartfelt senti- ment of my colleagues on the District Court bench when I express in their behalf the sincere hope that the lustre of your careers in your new and wider sphere of judicial activity may exceed, if possible, the renown of your noble past.
The resolutions offered by Mr. McClure and seconded were then put to vote by the chairman and adopted unanimously. The chairman then addressed the meeting.
ADDRESS OF CHIEF JUDGE JOSEPH F. DALY.
The Court of Common Pleas closes to-day a history co-extensive with that of the City of New York with which it has been so long identified. Its annals down to the year 1855, as prepared by its former Chief Judge, to whom we have had the great pleasure of listening to-day, form one of the most interesting chapters in local history. From 1855 to 1870 there was nothing to be added but the succession of its Judges; in the latter year it received a grant of constitutional powers which placed it for a quarter of a century in the first rank of State Courts.
My acquaintance with the Court began in the sixties, when a member of the bar. Its high reputation for the careful consideration of its cases and the learning and character of its Judges attracted a good share of the equity business of the profession although it had but three Judges and its law calendar was full. I com-
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menced in it an action for an injunction to protect rights in real property and in that litigation I met for the first time the present Presiding Justice of the Supreme Court of this district. Our case was heard and determined by the then First Judge of the Court, Charles P. Daly. In 1870 we joined him upon the bench. A special Spring election of Judges was held in that year under the amended Constitution of 1869 reorganizing the Court of Appeals, the Supreme Court and Court of Common Pleas. Of the Judges then elected but three now survive, the Chief Judge of the Court of Appeals, the Presiding Justice of the Supreme Court of this district and the Chief Judge of the Court of Common Pleas.
The reputation of the Court of Common Pleas at the time of the Constitutional Convention of 1869 was such that with but three Judges and a calendar to which only about 350 cases were annually added, the Conven- tion determined to extend its usefulness by doubling the number of its Judges. The new Judges were elected in 1870 and the next year the new issues added to its calendar were 968. Last year the new issues were over 1,300-the highest number in its history.
The increase was the more significant because the Court has had only five Judges to perform its work. Under the Constitution of 1870 the Governor was authorized to assign one or more of its Judges to assist in the work of the Supreme Court; and one of them has been so assigned continuously for twenty-five years. So that while its force was not quite double what it was in 1869 its business has trebled. But the provision for detailing its Judges to the Supreme Court
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tended, as was lately remarked by Mr. Carter, to the ultimate consolidation of the Courts. No matter how great the influx of cases to the Common Pleas the natural growth of business in the Supreme Court would tend to further drafts upon the judicial force of the former. In fact, in 1869 the Governor of the State communicated to us the request of the Supreme Court for the services of an additional Judge, a request which it was impossible to grant without injustice to our own suitors.
The consolidation of the local Courts of superior jurisdiction with the Supreme Court, which had been long discussed and which is now effected by the Con- stitution of 1894, grew out of no dissatisfaction with the work of these Courts. Had there been merely question of one good Court, or two of superior jurisdiction in the great cities, the reasons against consolidation might have prevailed; for, tested by the result of the scrutiny which the decisions of the several Courts undergo in the Court of Appeals, no Court of original juris- diction fell far behind another in the quality of its work.
An examination of the Court of Appeals Reports for five years, from March, 1889, to April, 1894, gives the percentage of affirmances of the Supreme Court at seventy-five and of the Common Pleas at seventy-six, while those of the City Court of Brooklyn were still greater. An examination of the appeals in the years 1891 and 1892, made in the latter year and published at the time, showed that the reversals of the decisions of the Supreme Court and Common Pleas was only 5 per cent. in the former and 6 per cent. in the latter
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of the whole number of decisions rendered by their general terms and appealable to the Court of Appeals. If the observation of Dean Austin Abbott be correct that "an Appellate Court exists solely for the purpose of reversing," then the local Courts have added little to the labor of the Court of last resort.
Consolidation came, not from the necessity of improv- ing the Courts of original jurisdiction-for, as ex-Judge Noah Davis recently said " the work of the Courts is now performed with an industry unparalleled in the history of the judiciary," but from the necessity of relieving the burdens of the Court of Appeals and to preserve that tribunal from unwieldy enlargement, or divisions into parts. To this end the system of inter- mediate appellate tribunals with final powers in certain cases, was devised; and that system required that the jurisdiction of all the existing general terms should be vested in those tribunals. It was perceived at once that all the advantages of separate independent local Courts would disappear with the consolidation of their general terms and the loss of control of their own judgments. One general term meant one Court not- withstanding that the forms of different organizations might be preserved. As the establishment of inter- mediate appellate tribunals necessitated the consolida- tion of the Courts, the change of system therefore began from the top; and the form of the trial Courts was changed in order to preserve the form of the Court of last resort.
The change was made by the framers of the new Constitution in a way to testify their respect for the local Courts and to remove all distinction between their
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Judges and those of the Supreme Court, who were all to be assigned to the work of that Court without dis- crimination. The reason was not, as far as this Court was concerned, difficult to find. It was conspicuous in the record of its business. Its five Judges have held general terms, equity terms, trial terms and special terms in the exercise of jurisdiction co-extensive with that of the Supreme Court within the limits of this county. The general terms reviewed the appellate decisions of six Justices of the City Court, the judg- ments of eleven District Court Judges, and the judg- ments and orders of its own five Judges. The number of cases actually decided in the general term in 1871, when the additional Judges took their places was 284; it had increased in 1895 to 503; 384 written opinions were filed by the general term this year. In addition, the Judges tried 632 cases on the law, equity and special term calendars, heard 3,536 motions and made 14,040 ex parte orders.
It is significant that although the Judges with all pos- sible application were able to dispose of but 391 causes on the jury calendar in 1894, new issues to the number of 1,305 were added to the calendar in that year; the Court having attracted business three times as great as its capacity to dispose of. In that year the insolvent assignment business of the Court aggregated 177 assignments with schedules showing over $3,000,000 of actual assets; and required at special term 118 final accountings and decrees and the making of 937 orders. The aggregate amounts involved in the business of the Court for certain periods needs no comment. The judgments in the Court for twenty years, to 1894, num-
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bered over 20,000. The amount of the money judg- ments was $28,406,688; the amounts involved in mort- gage foreclosures, $30,209,498; the insolvent estates actually distributed, $49,499, 334.
This is the briefest possible glance at the work of the Court, work which the bar has been pleased to commend in to-day's proceedings. In performing day by day, with simple devotion, the duty nearest to them, the Judges have expected no reward like this; and they could desire no greater, It leaves us embarrassed for fitting words to reply. But I should not do justice to what I know to be the feelings of the whole bench of the Common Pleas, if I permitted this memorable occasion to pass without acknowledging the uniform courtesy which the Judges have received from the bar; and something more; for the bar of this city-noted as it has always been for the respect it pays to its judi- ciary-has unmistakably evinced towards this Court a warmer feeling.
Judges who respect the bar cannot fail to win its respect. When the bench appreciates the labors, anxieties, difficulties and responsibilities of the practi- tioner; sees in him, his cause and his clients; apprehends the consequences of litigation to the litigant and approaches the consideration of a case with a sense of its immense importance to the parties, there is no fear that the bar will fail to appreciate such conscientious feeling in the discharge of official duty.
It has been said that the bench of the Common Pleas has always kept in touch with the profession; that we have in a special manner shown the utmost considera- tion for its younger members. We have found them
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ANDREW WARNER.
BENJAMIN H. JARVIS.
SAMUEL JONES.
ALFRED WAGSTAFF.
THE CLERKS OF THE COURT OF COMMON PLEAS.
deserving of it. We regard the future as full of promise for the profession in the ability and earnestness of its rising members. I alluded to the warmer feeling which the bar has entertained for this Court. On many occasions and by the voice of many of its members the profession has testified not merely respect, but affec- tion, for the Court of Common Pleas. This we take with us as a priceless remembrance upon bidding fare- well to the venerable institution which is now passing away and entering upon a new field of duty. We hope to carry with us your unchanged regard. Nothing will be altered but a form. As the ancient Court in the two centuries and a half of its existence saw gen- erations of men as well as successions of Judges pass away, saw even governments and dynasties change, and survived them all, it seemed to be the substance and men but shadows. It now passes away with the shadows, but the substance remains. It will be strange indeed if all that made it respected and loved cannot be perpetuated in another form and in another tribunal. You can make your Courts and your Judges what you please. A courageous bar makes an incorruptible judiciary.
It now remains only to thank you, gentlemen, on be- half of the Judges of the Court for the honor you have done them in this commemorative meeting and in selecting the Chief Judge of this Court to preside over it. On behalf of the Judges of this Court I wish to thank the clerk, the assistant clerks, the stenographers and the attendants, for their assistance so long and faithfully rendered. Our last collective function is now to be performed. The Court which has existed for 250
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years is to hold its last session.' Under the name of the Court of Common Pleas, it has existed seventy-four years and in that time has had twenty-three Judges. Its first Judge, John T. Irving, sat in it seventeen years; its second, Michael Ulshoeffer, sixteen years; its third, D. P. Ingraham, twenty years; its fourth, Wm. Inglis, five years, and its fifth, Charles P. Daly, forty- one years, and he is with us to-day hale and vigorous. Seven other Judges have sat in it for terms of eleven to twenty-five years. It has given five Judges to the Supreme Court besides those now transferred; two to the Superior Court and one to the Circuit Court of the United States. It has been closely connected with all the local Courts and Judges and in performance of the multifarious duties imposed upon it has furnished in its reports authorities in almost all known proceedings; and it closes its labors surrounded with that which the poet says should accompany old age-
" As honor, love, obedience, troops of friends."
The prolonged applause following these remarks having subsided,
The Chief Judge directed that the Court be convened for the last time.
The crier, Mr. Thomas Sweeny, then formally opened the Court.
Ex-Judge George M. Van Hoesen moved that the proceedings of this meeting be placed upon the records of the Court, and it was so ordered.
The Chief Justice then inquired if there was any further business before the Court.
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Whereupon the Clerk of the Court, Mr. Alfred Wagstaff, arose and said :
All the business submitted to the Court has been disposed of. The actions and proceedings pending will be transferred to the Supreme Court of this department of which the Judges of this Court are to be members. The seals, records, papers and documents belonging to the Court are ready to be deposited in the office of the Clerk of the County pursuant to the Con- stitution.
PRESENTATION OF A GAVEL TO CHIEF JUDGE JOSEPH F. DALY.
Mr. William S. Keiley, the Assignment Clerk, rose and addressed the Chief Judge. Mr. Keiley said :
To me, sir, has been assigned the pleasant duty, tinged though it be with a keen sense of sorrow at the severing of ties of friendship that have existed for about a quarter of a century,-of presenting to your Honor this emblem of your judicial power, which you have wielded so long and so faithfully, and with so much of honor and credit to yourself and this Court, and while we must accept it as an accomplished fact that the law of gavelkind cannot obtain in your Honor's case by reason of the constitutional demise of this Court,-still let us hope that the existence of this gavel may incite those who come after you to a laudable spirit of emulation-for, sir, in those dismal days when the judicial ermine in this country was be- fouled and an indignant people in their righteous wrath demanded reform, no breath of suspicion pervaded the atmosphere of this Court and the humblest litigant
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here found a haven where the waters were pure, and the scales of justice were held with an even hand.
Accept it then, sir, in the same spirit which prompts its gift, as a modest token of that esteem and affection in which you shall ever hold a place in our memories- and be assured that though some of us less fortunate perhaps, than others, must seek our livelihood in other fields, yet to one and all it shall be the sweetest heritage to ever keep in fond memory the Court of Common Pleas and its last Chief Judge.
The Chief Judge replied as follows:
I am deeply touched by this remembrance, which I understand to be the gift of the senior and the assistant clerks of this Court, some of whom were already old in the service of the Common Pleas when, at an age so early as now to cause me as much wonderment as pride, I ascended its bench. If after so many years the veterans entertain so cordial a feeling for the youngest Judge under whom they ever served it is because he has ever held them in the same respect as when, as a young practitioner, he first knew them and recognized their functions as an essential part of the tribunal of justice; and because he never lost and never had occasion to lose his respect for the scrupulous care with which they performed their responsible duties.
It occurs to me, as I touch this gavel, that the bar will, perhaps, bear me out in saying that I have handled it more on this occasion than in the whole twenty-five years of my service on the bench. It was intended, I believe, to help me to enforce order. ] never needed it. The decorum observed by the bar of New York is their distinguishing characteristic. But I
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shall prize it for what it suggests. For, if the white- ness of the ivory is figurative of the ideal judicial character, let me say that the sterling gold of its adornment is no less expressive of the character of our bar.
Under the directions of the Chief Judge, the crier then adjourned the Court of Common Pleas without day.
INSCRIPTIONS UPON THE GAVEL.
On the gold band around the barrel was inscribed :
1653-1895. 1821 JOHN T. IRVING 1838 1838 MICHAEL ULSHOEFFER 1850 1850 DANIEL P. INGRAHAM 1858 1858 CHARLES P. DALY 1886 1886 RICHARD L. LARREMORE 1890 1890 JOSEPH F. DALY 1895
On one end of the barrel:
1870 to 1890 J. JOSEPH F. DALY 1890 to 1895 C. J.
On the other end of the barrel: An impression of the Court seal.
On the gold band around the handle:
This gavel was used by the last Chief Judge of the Court of Common Pleas for the City and County of New York.
HÆC OLIM MEMINISSE JUVABIT.
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APPENDIX.
SOME OF THE PRESS NOTICES ON THE RETIREMENT OF CHIEF JUSTICE CHARLES P. DALY.
Extract from the New York Evening Post, Dec. 29th, 1885.
" Judge Daly was appointed to fill a vacancy by Governor Bouck, under the old system, in 1844, and has been regularly reëlected to succeed himself by the popular vote ever since. The only time when he ran any risk of being dropped was in 1871, when his term expired, and the Tweed Ring was well known to need his place for a more pliant man. But its power had been broken before the election came off, and he then was treated to the great honor of a unanimous vote from all parties and factions for the term of fourteen years which is now expiring. *
" What the general public is now called upon gratefully to remem- ber is that Judge Daly has in his time sat in many great causes, and passed on many great questions, often in troublous times, and in times, too, when judicial integrity was much and reasonably doubted, without ever having the shadow of a suspicion cast on him by either victor or vanquished. It is this, after all, rather than his legal learning, great as that may have been, which the mass of his fellow-citizens have most prominently in mind to-day in wishing him many happy years of well-won repose.
" It must also be said of him that at a period when the New York bar is singularly absorbed in professional pursuits, when the cultivation of other than professional knowledge is singularly neglected by it, he has always found time for a reasonable devo- tion to literature and science. His services in geography and in the promotion and elucidation of geographical research are known to scientific men all over the world. He has been an industrious investigator in many out-of-the-way historical fields, and in fact so much so as sometimes to convert his judicial decisions into.
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genuine treatises, when the subject was one which admitted or called for this sort of discussion. Few Judges have, indeed, ever more fully illustrated the saying that 'the sparks of all other sciences are found in the ashes of the law.'
"In truth, during the last forty years there have been few literary or scientific movements in this city in which he has not taken a more or less prominent part, and few social gatherings of the intellectual kind at which he has not been a welcome and valued guest. He has in this way, too, reflected a sort of credit on the judicial bench. 'New York society,' as it is called, has not of late been as much indebted to the learned professions as it used to be in the days when Judge Daly was in his prime for the things which give refinement to wealth and luxury. Take him for all in all, we shall not soon see any one on the bench with such varied claims on general esteem and respect. It will probably be a long time before another Judge will appear who for forty-two years will fill the position with as little reproach, and win for it as much honor, and carry with him into his retirement so many friendly reminders that he has played well a great part."
Extract from the Daily Register, Dec. 30th, 1885.
" The Court of Common Pleas, in which he has so long pre- sided, has, in reality, during the last half century, given the law to a very large portion of the inhabitants of this city on the sub- jects most closely connected with domestic and business welfare. Inheriting in some sense the limited functions and modest position of the Mayor's Court-an humble position in jurispru- dence, when considered in relation to the general jurisdictions of the country-the Court of Common Pleas, under the administra- tion of Chief Justice Daly and his associates, has carried forward the advances it has already made, and has steadily risen, win- ning, by growing public confidence, constant accessions of jurisdiction, until it now stands in coordinate rank with the Supreme Court, from which it differs simply by a few small territorial restrictions of jurisdiction.
" Those lawyers who have had a varied experience here will probably consider it no exaggeration to say that the controverted questions of law affecting more than half the population of the
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city in respect to their homes, their contracts, their vocations, their tenancies and their business and social duties, have been sifted and settled in the Court of Common Pleas; and if of late in its appellate jurisdiction over the City Court it has had far more aid than in years gone by, undoubtedly it has formerly had at times no easy task in administering its appellate jurisdiction over the District Courts and the late Marine Court. The success with which it has held within practicable limits the constructions of law which those somewhat wayward tribunals were occasionally inclined to lay down, is no small element in the obligation which the city owes to the Judges of the Court of Common Pleas and their experienced chief.
" If it has not fallen to the lot of the Judge whose services we recognize, and whose return to the ranks of the profession we greet, to deal frequently with broad and far-reaching questions of constitutional law, public polity and criminal jurisprudence, it is because the public needs required him in the constant administra- tions of questions which come home still more closely to men's business and bosoms, and which though affecting fewer people than some of the litigations of the day, affect the parties and the local cummunity far more closely and vitally.
"The good sense and thorough research, the practical adaptation of learning to present necessities, the firmness and humanity with which his administration has been characterized deserves the recognition which the bar intends to give, and these qualities will continue to receive a growing appreciation as his opinions continue to be quoted and followed.
"No other Judge will probably deem it derogatory or beyond the limits of just recognition to say that to strike Judge Daly's decisions out from the body of our present authorities on the law of real property, landlord and tenant, carriers, master and servant, and contracts of employment, bailment, and hotel keeper's law, sales and negligence-not to mention other topics of scarcely less importance-would create as large an hiatus in our jurisprudence as the loss of those of any other Judge living or dead."
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Extract from the New York Times, November 15th, 1885 .
"It is not only on the bench that Judge Daly has used his legal knowledge in the service of the public. When the War of the Rebellion broke out he was a Democrat, but a true Union Demo- crat, always speaking in defense of the integrity of the Union and insisting that the rebellion must be put down at all hazards. He was in frequent consultation with President Lincoln and members of the Cabinet, who often sought his legal advice and generally acted upon it. When the crew of the rebel privateer ' Jefferson Davis' were convicted and sentenced to be hanged as pirates in 1861, Judge Daly met the President and his Cabinet and urged that they be pardoned and exchanged as prisoners of war. He reasoned that as a question of law there was no difference be- tween the Southern soldier fighting the Union soldiers on land and the Southern privateer capturing our ships afloat. His argu- ments were so impressive that the President asked him to put them in the form of a letter, which he did, publishing it in the Times, Herald, Sun and Tribune. Three days after the Presi- dent adopted his views and the prisoners were exchanged.
"A few evenings after the seizure of Mason and Slidell Judge Daly was dining with Chief-Justice Chase, when the question of the right to take them from a British vessel was discussed. The Judge was the only Democrat present, except Montgomery Blair. The feeling was universal at that time that the two rebel ambas- sadors ought not to be given up. Judge Daly's opinion was asked by the Chief Justice, and he promptly answered: 'I think we shall have to surrender them. Their seizure would be per- fectly justifiable by the English law, but not by our own; I think that our cases are against us.' The Judge promised to hunt up the authorities, and he did so the next morning, finding a de- cision of Chief Justice Marshall that was flatly against holding the prisoners. He referred Secretary Seward to this, and that even- ing he saw William M. Evarts and told him his views. Mr. Evarts did not agree with him, but Mr. Seward evidently did, for four days after he published a letter consenting to the return of Mason and Slidell to the protection of the British flag. What might have happened had this decision of Judge Daly's, made in the face of strong opposition, not been accepted it is not pleasant
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