USA > New York > Monroe County > Landmarks of Monroe County, New York : containing followed by brief historical sketches of the towns of the county with biography and family history > Part 20
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By the constitution of 1821 many and important changes were made in the character and methods of the court. The judges were reduced to three and appointed by the governor with the consent of the senate, to hold office during good behavior, or until sixty years of age. They were removable by the legislature on the vote of two-thirds of the assembly and a majority of the senate. Four times a year the full
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court sat in review of their decisions on questions of law. By the constitution of 1846 the Supreme court was abolished, and a new court, of the same name and having general jurisdiction in law and equity, was established in its place. Its members were composed of thirty three justices, to be elected by the people. By the judiciary act of 1847 general terms were to be held at least once in each year in counties having more than 40,000 inhabitants, and in other counties once in two years; and at least two special terms and two circuits were to be held yearly in each county except Hamilton. By this act the court was authorised to name the times and places of hold- ing its terms, and those of the Oyer and Terminer, the latter being a part of the Circuit court and held by the justice, county judge and two justices of sessions. Since 1882 the Oyer and Terminer has con- sisted of a single justice of the Supreme court. However, under the sweeping changes made by the constitution of 1894, Circuit courts and courts of Oyer and Terminer are abolished from and after the last day of December, 1895, and all their jurisdiction shall thereafter be vested in the Supreme court. Provision is also therein made for an appellate division of this court, to consist of seven justices in the first, and five in each of the other three judicial departments into which the state is divided. The appellate division is invested with the jurisdiction previously exercised by the Supreme court at general term, and the general terms of the New York county Common Pleas, the Superior courts of the cities of New York, Brooklyn and Buffalo, and such other jurisdiction as the legislature may confer. From the justices of the Supreme court the governor shall designate those who shall constitute the appellate division, and also the presiding justice thereof, the latter to act during his term of office, the others for the term of five years. In this court four members shall constitute a quorum, and three must concur to render judgment. Legislative enactment in 1895 designated the city of Rochester as the place in which the appellate division shall sit in the fourth department of the state, the other department capitals being New York, Brooklyn and Albany.
The judiciary article of the constitution of 1846 was amended in 1869, the legislature being authorised to provide (not more often than once in five years) for the organisation of general terms consisting of
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a presiding justice and not more than three associates, but by the laws of 1870 the then organisation of the general terms was abrogated, and the state was divided into four departments, and provision made for holding general terms in each. By the same act the governor was directed to designate from the justices of the Supreme court a presiding justice and two associates to constitute a general term in each depart- ment. Under the authority of the constitutional amendment adopted in 1882, the legislature, in 1883, divided the state into five judicial departments, and provided for the election of twelve additional justices to hold office from the first Monday in June, 1884. The constitution of 1894 provided for the election of twelve more justices of the Supreme court, three to reside in the first. three in the second, and one in each of the other six judicial districts of the state.
The court of Chancery of the state of New York was an heirloom of the colonial period, and had its origin in the court of Assizes, the latter being vested with equity powers under the duke's laws. The court was established on February 16, 1683, and went out of exist- ence by limitation in 1698; was revised by ordinance in 1701, sus- pended in 1703, and re-established in 1704. Previous to that time matters in equity were heard in any of the courts organised in con- formity to the duke's laws. At first this court was unpopular in the province, the assembly and colonists opposing it with the argument that the crown had no authority to establish an equity court in the colony.
Their reasons were that quit-rents upon the sale of lands belonged to the crown as a prerogative; that through the neglect of the gov- ernors these rents had been allowed to fall in arrears, and the court of Chancery was resorted to for their collection. Furthermore, the gov- ernors, almost without exception, were adventurers, or men of impaired fortunes, who accepted these appointments with the hope of enriching themselves. The methods they pursued in making their office profita- ble consisted of granting patents of lands and receiving from the grantee a gratuity (or bribe) in proportion to the value of the land granted-a palpable fraud upon the rights of the crown. As a result the grantees were fearful that proceedings might be instituted in the court of Chan- cery by the attorney-general to revoke the grants, And thus the court
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of Chancery was a menace to the security of the land owners, and incurred their bitter opposition.
Under the constitution of 1777, the Chancery court was reorganised, and by the reorganisation of 1778 masters and examiners were desig- nated by the council of appointment, while registrars and clerks were appointed by the chancellor; and the latter licensed all solicitors and counsellors of the court. Appeals lay from the Chancery court to the court for the Correction of Errors.
Under the constitution of 1821 the chancellor was appointed by the governor, and held office during good behavior, or until sixty years of age. Under the second constitution equity powers were vested in the circuit judges, and their decisions were reviewable on appeal to the chancellor. The equity character, however, was soon taken from the circuit judges and vested in the chancellor alone, and the judges after- ward acted as vice-chancellors in their respective circuits. The consti- tution of 1846 abolished the court of Chancery, and its powers and duties were vested in the Supreme court.
By an act of the legislature passed in 1848, and entitled the "Code of Procedure," all distinction between actions at law and suits in equity was abolished, so far as the manner of beginning and conducting the same were concerned, and one uniform method of practice in all actions was adopted. In June, 1877, the legislature enacted the "Code of Civil Procedure," to take the place of the code of 1848, and by this many minor changes in the practice of the court were made.
These are, in brief, the changes through which the Supreme court has passed in its growth from the prerogative of an irresponsible gov- ernor to one of the most independent and enlightened instrumentalities for the protection and attainment of rights of citizens of which any state or nation, ancient or modern, can rightfully boast. So well is this fact understood by the people that by far the greater amount of business which might be done in inferior courts at less expense is actually taken to this court for settlement.
Next in rank to the Supreme court is the County court, held in and for each county in the state, at such times and places as its judges may direct. This court had its origin in the English court of Sessions, and, like it, had, at one time, only criminal jurisdiction. In 1675 Andros 26
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granted a charter. The mayor with four aldermen was authorised to sit as a court of Sessions. He did not, however, organise a separate criminal tribunal, but continued as before to discharge criminal and municipal business at the regular sittings of the court. By an act called an act to "settle courts of justice," passed in 1683, a court of Sessions, having power to try both civil and criminal causes by jury, the former without limitation as to amount, was directed to be held by three justices of the peace in each of the counties of the province twice a year, with an addi- tional term in Albany and two in New York. In the city of New York it was held by a mayor and four aldermen. By the act of 1691 and the decree of 1699, all civil jurisdiction was taken from this court and con- ferred on the Common Pleas. By the radical changes made by the constitution of 1846, provision was made for a County court in each county of the state, except New York, to be held by an officer desig- nated the " county judge," and to have such jurisdiction as the legisla- ture should prescribe. Under the authority of this constitution County courts have been given jurisdiction in various classes of actions, and have also been invested with certain equity powers in the foreclosure of mortgages, the sale of infants' real estate, and also to par- tition lands, admeasure dower and care for the persons and estates of lunatics and habitual drunkards. The judiciary act of 1869 continued the existing jurisdiction in all actions in which the defendant lived within the county and the damages claimed did not exceed $1,000. The constitution of 1894 likewise continues the court and increases its power in extending the amount of damages claimable to $2,000.
Like the Supreme court, the County court has its civil and criminal sides. In criminal matters the county judge is assisted by two justices of sessions, elected by the people from among the justices of the peace of the county. It is in the criminal branch of this court, known as the " Sessions," that minor criminal offenses are disposed of, and all indict- ments, except for murder or some very serious felony, are sent to it for trial from the Oyer and Terminer. The constitution of 1894 abolishes courts of Sessions, except in New York county, after the 3Ist of De- cember, 1895, and its powers and jurisdiction are thereafter to be vested in the County court. By the codes of 1848 and 1877 the procedure and practice in this court are made to conform as nearly as possible to
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the practice of the Supreme court. This was done with the evident design to attract litigation into these minor courts and thus relieve the Supreme court. In this purpose, however, there has been a failure, as litigants much prefer the shield and broader powers of the higher court. Under the code county judges perform some of the duties of a justice of the Supreme court at chambers. The County court has appellate jurisdiction over actions arising in justices' courts and courts of Special Sessions. Appeals lie from the County court direct to the general term.
The constitution authorises the legislature, on application of the board of supervisors, to provide for the election of a special county judge, to assist the regular judge in the disposition of business of the County court. Under this authority, on April 25, 1864, the legisla- ture passed an act authorising such a judicial officer in Monroe county, to hold office for the term of three years, and receive such compensa- tion as the supervisors shall determine.
The old court of Common Pleas of the state of New York, the oldest tribunal of the state, which survived the changes of two con- stitutional revisions, was another heirloom of the colonial period, and was established originally under the charters of 1686, for the counties of New York and Albany, and was made general to the state by the act of 1691. Under the first constitution the number of judges was various, there being as many as twelve in some counties, but the act of 1818 limited the judges to five in each county, including the first judge. The constitution of 1821 continued the court, and its judges were appointed by the governor and senate and held office for the term of five years. This court, except in the county of New York, was abolished by the constitution of 1846.
Surrogates' courts, one of which exists in each county of the state, are now courts of record, having a seal, and their especial jurisdiction is the settlement and care of estates of infants and of deceased persons. The derivation of the powers and the practice of these courts is from the Ecclesiastical court of England, also in part through the colonial council which existed during the rule of the Dutch, and exercised its authority in accordance with the Dutch Roman law, the custom of Amsterdam, and the law of Aasdom, the Court of Burgomasters and
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Scheppens, the Orphan Masters, the Mayor's, the Prerogative, and the court of Probate. The settlement of estates and the guardianship of orphans was tranferred to the Burgomasters in 1653, and soon after to the Orphan Masters. Under the colony the Prerogative court controlled all matters relating to the probate of wills and settlement of estates, but in 1692, by act of the legislature, all probates and granting of letters of administration were to be under the hand of the governor or his dele- gate, and two freeholders were to be appointed in each town to care for the estates of persons dying intestate. Under the duke's laws this duty had been performed by the constables, overseers and justices of each town. In 1778 the governor was divested of all of this power, except the appointmont of surrogate, and it was conferred upon the judges of the court of Probate.
Under the first constitution, surrogates were appointed by the coun- cil of appointment, and under the second by the governor with the ap- proval of the senate. The constitution of 1846 abolished the office of surrogate in all counties having less than 40,000 population, and con- ferred its powers and duties on the county judge, By the code of civil procedure, surrogates were invested with all the necessary powers to carry out the equitable and incidental requirements of their office. In its present form, and sitting weekly, this court affords a cheap and expe- ditious medium for the care and settlement of estates and the guardian- ship of infants.
The only remaining courts which are common to the whole state are the Special Sessions, held by justices of the peace for the trial of minor criminal offenses, and justices' courts with a limited civil jurisdiction. Previous to the constitution of 1821 (modified in 1828), justices of the peace were appointed, but since that time they have been elected. The office and its duties are descended from the English office of the same name, but are much less important, and under the laws of this state it is purely the creature of the statute. In the city of Rochester the office of justice of the peace was abolished by a special act of the legislature, passed May 2, 1876. In its stead was created at the same time and by the same authority the "Municipal court," having only civil jurisdic- tion and in actions when the amount of damages, claimed did not ex- ceed four hundred dollars. The practice and methods of this court are
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much the same as in Justices' court. Under the act two judges are authorised to be elected.
This brief survey of the courts of New York, which omits only those that are local in character, gives the reader some idea of the machinery provided for the use of the members of the bench and bar.
The organisation of the courts in Monroe county was accomplished with little ceremony and still less difficulty. The county itself was erected by act of the legislature, passed February 23, 1821, and on the 8th of May of the same year the first state court of record was held. The court house was not ready for occupancy until 1822, and in the in- terim court sessions were held in designated buildings, the first one in landlord Ensworth's public house, which stood on the site of the pres- ent Powers building. The officers of the county at that time were Elisha B. Strong, first judge; Timothy Barnard, sen., Levi H. Clark, and John Bowman, associate judges; Nathaniel Rochester, clerk ; James Seymour, sheriff; Timothy Childs, district attorney ; Elisha Ely, surrogate.
However, it is not properly within the province of this chapter to refer at any length to the several county buildings in which the courts have been held, as that subject is more fully treated in another part of the work; but it is our present purpose to mention the names of those persons who have been connected with the courts and the administra- tion of law in the county from its earliest history to the present time.
The bar of Monroe county has ever been noted for its strength. On the bench and at the bar of the courts have been men of the highest professional character and of great moral worth. Of the leading legal minds of this state Monroe has furnished a liberal proportion, many of whom have attained distinction and some have acquired emi- nence. They have been characterised by strict integrity as well as rare ability-qualities which have made for them a high place, not only in the courts, but also in the legislative halls both of the state and the nation.
Glancing over the pages of time worn records and old publications we learn that some of the outlying towns of the county were the abiding places of old legal practitioners, though the entire absence of reliable data precludes the possibility of a complete list in any locality. In
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the town of Pittsford Simon Stone is said to have been the first lawyer, while soon afterward came William G. Taylor, Ira Bellows, and Ephraim Goss; and if local traditions be reliable these men were in practice while the town was yet a part of Ontario county. Still later were Elias B. Holmes, M. F. Delano, William C. Rowley, Watson S. Hinckley, M. H. Champlin, William F. Cogswell, James A. Guernsey, Ashley Sampson, John B. Vosburg, John M. Steele and others, perhaps, whose names are now forgotten. In Henrietta, Sanford E. Church in 1821, and for several years afterward. Judge James L. Angle was born in this town. At Scottsville, Whitman Ashby was an old-time lawyer. At Charlotte John Mastick began his professional career. Leonard Adams was an early legal light in Penfield. Jerome Fuller afterward well known in political life, was in Sweden in 1835. Mr. Bender, probably Hastings R. Bender, later of Rochester, was in Brock- port in 1823. The first lawyer in actual practice in that village was Francis Storm ; the second was Daniel Burroughs. Henry R. Selden and Simeon B. Jewett were both early practitioners and partners in Clarkson
The pioneer lawyer of Rochester was John Mastick, who located first at the little hamlet called Charlottesburg, at the mouth of the Genesee river. Mr. Mastick came to this region about 1815, and died here in 1826. The second lawyer was Hastings R. Bender, who came to the place, as near as can be ascertained, about 1817, and he was followed during the next few years by Roswell Babbitt, Joseph Spencer, Jesse Dane, and Enos Pomeroy, about in the order named. These were the pioneers of the profession in Monroe county, and each is believed to have been located and in practice previous to the creation of the county, and while its territory formed a part of the older divisions, On- tario and Genesee. Succeeding pages will show who have been the subsequent practitioners in the courts, and we may now briefly call to notice the names of lawyers who have been chosen to the more exalted offices of the profession.
The old Chancery court, which passed out of existence on the adop- tion of the constitution of 1846, had on its bench but a single represent- ative from this county. Frederick Whittlesey was appointed vice- chancellor April 16, 1839. He is remembered as one of the older bar,
ADDISON GARDINER.
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a man of excellent legal attainments, a safe counsellor and a trusted attorney. Mr. Whittlesey came to this county in 1823, and, previous to his appointment to the vice chancellorship, had held the office of city attorney, and for two terms, from 1831 to 1835, represented this district in congress. After the constitution abolished the court of Chancery, Mr. Whittlesey was the Whig nominee for the office of judge of the court of Appeals, but was defeated at the polls. However, he was soon afterward appointed justice of the old Supreme court, to suc- ceed Judge Jewett. This court was abolished July 1, 1848, and on that date Judge Whittlesey retired from public life. He died in Roch- ester, September 19, 1851.
The chief judgeship of the court of Appeals has had three represent- atives from this county. The first was Addison Gardiner, whose term of service in that position began January 1, 1854. The second was Samuel L. Selden. who succeeded to the position January 1, 1862, while the third was the late chief judge Sanford E. Church, appointed May 17, 1870, after the adoption of the constitutional amendments of 1869.
In the office of judge of the court of Appeals the county has been still more numerously represented. The first person to be chosen was Addison Gardiner, appointed June 7, 1847 ; the second, Samuel L. Sel- den, elected November 6, 1855 ; third, Henry R. Selden, appointed July 1, 1862, and elected by the people November 3, 1863. The fourth was George F. Danforth, elected November 5, 1878. In the same connec- tion may be mentioned the Supreme Court justices who have been called to seats on the court of Appeals bench, viz .: Samuel L. Selden, whose term began January 1, 1854; Theron R. Strong, whose term be- gan January 1, 1858, and E. Darwin Smith, whose two terms began, respectively, January 1, 1862, and January 1, 1870.
Addison Gardiner, born in Rindge, N. H., March 19, 1797, was a grandson of Isaac Gardner, of Brookline, Mass., one of his majesty's magistrates in colonial times who was killed at the beginning of the Revolutionary war and of whom Bancroft, the historian, says: "Isaac Gardner, one on whom the colony rested many hopes, fell about a mile west of Harvard college. The patriot marched with the Brookline minute. men for Lexington on the 19th of April, 1775, and, meeting the retreating column near Watson's Corners, was instantly
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killed in the skirmish which ensued, receiving no less than a dozen wounds." William Gardner, his son, born at Brookline in 1761, mar- ried Rebecca, daughter of Dr. Raymond, and settled at Rindge, N. H., where he held the principal civil and military offices, being colonel of a local regiment, three years member of the state legislature, etc. Soon after 1809 he moved to Manlius, Onondaga county, N. Y., where he was a successful merchant and manufacturer until his death in 1833. His sons, of whom Addison was the third, restored the original spelling of the name, Gardiner. Addison Gardiner began the practice of law at Rochester in 1822 and was very soon made a justice of the peace. He became a partner of Samuel Lee Selden, under the firm name of Gardi- ner & Selden, and Henry Rogers Selden, younger brother of Samuel L., read law in their office. The three men successively occupied the most exalted positions in the judiciary of the state and for many years were recognised leaders of the bar. In 1825 Mr. Gardiner was ap- pointed district attorney for Monroe county, and on September 25, 1829, Governor Throop appointed him circuit judge for the eighth cir- cuit of the state, embracing Allegany, Erie, Chautauqua, Monroe, Gen- esee and Niagara counties. He was also ex officio vice chancellor for the same territory. Resigning in February, 1838, he resumed his prac- tice, and in November, 1844, was elected lieutenant-governor of the state with Silas Wright, governor, and served with distinction for three years, when he resigned.
Upon the organisation in 1847 of the new court of Appeals, which, under the constitution of 1846, was made the court of last resort, Mr. Gardiner was elected one of the justices and served until the close of his term December 31, 1855, when he voluntarily retired, declining a renomination. "In the distinguished circle of his cotemporaries Judge Gardiner occupied a conspicuous position. No opinions were quoted with more respect than his." They are found in Comstock's, Selden's and the first three volumes of Kernan's reports. As a judge his moral and intellectual qualities were characterised by directness, vigor, com- prehensiveness, and intense devotion to right. He was unswerving upon judicial questions and causes at law, yet he possessed a strong, sympathetic nature. After his retirement from the court of Appeals bench he continued as referee to administer justice for about twenty
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years and during that period probably heard more cases than any judge of the Supreme court. He was one of the most popular men of his time, and on one occasion was prominently mentioned as candidate for president of the United States. In 1831 he married Mary Selkrigg, of Scotch descent, and had two children, Charles A. and Celeste M. He died at Rochester on June 5, 1883.
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