(Supreme Court, Appellate Division, First Department.

June 4, 1920.)

1. Judges 11-Removal of justice of Municipal Court of City of New York within jurisdiction of Appellate Division.

Under Const. 1894, art. 6, §§ 11, 17, giving such courts as are or may be prescribed by law jurisdiction of proceedings for removal of justices of the peace and judges or justices of inferior courts not of record, and under sections 1 and 2, as well as Code Cr. Proc. § 132, and Laws 1901, c. 466, § 1383, Appellate Division has jurisdiction of proceeding to remove a justice of the Municipal Court of the City of New York, notwithstanding Laws 1915, c. 279, making such Municipal Court a court of record, and chapter 581, amending Laws 1901, c. 466, § 1383; such Municipal Court being a continuation of the old court, which was not of record, and not a new court, in view of Const. art. 6, § 18, and the Legislature having no power to deprive Supreme Court of jurisdiction conferred by the Constitution.

2. Courts 42 (5)-Municipal Court of City of New York, made court of record in 1915, not a new court but a continued, consolidated, and reor ganized one.

Laws 1915, c. 279, making Municipal Court of City of New York a court of record, did not violate Const. art. 6, § 18, prohibiting creation of a new inferior local court as a court of record; such Municipal Court being a continued, consolidated, and reorganized court, and not a new one. 3. Constitutional law 56-Legislature cannot deprive court of jurisdiction conferred by Constitution.

The Legislature is without power to deprive the Supreme Court and its Appellate Divisions by direct legislation of the jurisdiction conferred upon it by the Constitution.

In the matter of the application for the removal of Aaron J. Levy from the office of Justice of the Municipal Court of the City of New York. On objections to jurisdiction. Objections overruled, and respondent given 20 days in which to serve and file answer.

Argued before CLARKE, P. J., and DOWLING, SMITH, MERRELL, and GREENBAUM, JJ.

Leonard M. Wallstein, of New York City (Ralph M. Frink and Walter Frank, both of New York City, on the brief), for petitioners. Brackett, Todd, Wheat & Wait, of Saratoga Springs (Edgar T. Brackett, of Saratoga Springs, of counsel), for respondent.

CLARKE, P. J. The respondent was duly elected at the general election in 1913 a justice of the Municipal Court of the City of New York for the Second Municipal Court District for the term of 10 years, beginning January 1, 1914. The petition and its accompanying affidavits set forth certain charges against said respondent. The notice of motion asks that "the court inquire into the matters alleged" in the petition and the affidavits annexed thereto, "in order that it may determine whether further proceedings shall be had looking to" the respondent's removal from office. The respondent has appeared and objected to the jurisdiction of the court upon the ground that, as by chapter 279 of the Laws of 1915, the Municipal Court of the City of New York had been created a court of record, its justices

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

were removable only by the Senate on the recommendation of the Governor, if two-thirds of all the members elected to the Senate concur therein.

When the Constitution of 1821 was adopted, the justices of the present Municipal Court were known as "assistant justices in and for the city and county of New York." It was provided in section 14, art. 4, of that Constitution, that the assistant justices of the city of New York "shall be removable in like manner" as justices of the peace in the other counties of this state, and section 7 of said article provided that justices of the peace were removable "by the County Court, for causes particularly assigned by the judges of the said court." The Constitution of 1846 provided in section 11 of article 6:

"Justices of the Supreme Court and judges of the Court of Appeals may be removed by concurrent resolution of both houses of the Legislature, if twothirds of all the members elected to the Assembly and a majority of all the members elected to the Senate concur therein. All judicial officers, except those mentioned in this section, and except justices of the peace and judges and justices of inferior courts not of record, may be removed by the Senate, on the recommendation of the Governor."

And section 17 of said article provided:

"Justices of the peace and judges or justices of inferior courts not of record, and their clerks, may be removed, after due notice and an opportunity of being heard in their defense by such county, city, or state courts as may be prescribed by law, for causes to be assigned in the order of removal."

The judiciary article adopted in 1869 provided in section 11 of article 6:

"Judges of the Court of Appeals, and justices of the Supreme Court, may be removed by concurrent resolution of both houses of the Legislature, if twothirds of all the members elected to each house concur therein. All judicial officers, except those mentioned in this section, and except justices of the peace and judges and justices of inferior courts not of record, may be removed by the Senate, on the recommendation of the Governor, if two-thirds of all the members elected to the Senate concur therein."

And section 18 provided:

"Justices of the peace, and judges or justices of inferior courts not of record, and their clerks, may be removed, after due notice and opportunity of being heard, by such courts as may be prescribed by law, for causes to be assigned in the order of removal."

By the Constitution of 1894 it was provided in section 11 of article 6:

"Judges of the Court of Appeals and justices of the Supreme Court may be removed by concurrent resolution of both houses of the Legislature, if twothirds of all the members elected to each house concur therein. All other judicial officers, except justices of the peace and judges or justices of inferior courts not of record, may be removed by the Senate, on the recommendation of the Governor, if two-thirds of all the members elected to the Senate concur therein."

And section 17 thereof provides:

"Justices of the peace and judges or justices of inferior courts not of record, and their clerks may be removed for cause, after due notice and an opportunity of being heard, by such courts as are or may be prescribed by law."

Thus for 100 years there has existed a consistent constitutional scheme under which judges of the Court of Appeals and the justices of the Supreme Court were removable by concurrent resolution of both houses of the Legislature, judges of other courts of record by the Senate, on the recommendation of the Governor, and justices of the peace and judges and justices of inferior courts not of record by

some court.

The Municipal Court is the successor of the Assistant Justices' Courts, the District Courts of New York and the Justices' Courts of certain districts of Brooklyn. Worthington v. London G. & C. Co., 164 N. Y. 81, 58 N. E. 102. Through all the period of its existence, for nearly 150 years, under its various titles, down to the passage of chapter 279 of the Laws of 1915, it was a statutory inferior local court of limited jurisdiction, and by express provision of law not a court of record. It is not questioned that through all the period succeeding the adoption of our second Constitution the power to remove its justices lay in some court-under the Constitution of 1821 in the County Court; under the succeeding Constitutions, in such courts as were prescribed by law.

As required by the Constitution of 1846, the Legislature prescribed by section 25 of chapter 280 of the Laws of 1847, that:

"Justices of the peace, and judges and justices of inferior courts not of record, and their clerks, may be removed as provided by the Constitution, by the Supreme Court at any General Term thereof."

This act was immaterially amended by chapter 354 of the Laws of 1880, and again in the original Code of Criminal Procedure (chapter 442 of the Laws of 1881) § 132. After the adoption of the Constitution of 1894, and the creation of the Appellate Division, section 132 of the Code of Criminal Procedure was amended to read:

"Justices of the peace and judges and justices of inferior courts, not of record, and their clerks, may be removed, as provided by the Constitution, by the Appellate Division of the Supreme Court. The Appellate Division shall have power to order the proofs upon any proceedings hereunder to be taken before a referee to be appointed by such Appellate Division and to certify the reasonable expenses of such referee, which amount, so certified, is hereby declared to be a charge against the city, town or village within which such justices of the peace, judge, or justices of inferior court, not of record, or clerk, exercises the duties of his office."

And the Greater New York Charter (Chapter 378, Laws of 1897), in title 2 of chapter 20, entitled, "The Municipal Court of the City of New York," in section 1383, provided:

"The justices of said court and the clerk and assistant clerks thereof may be removed for cause after due notice and an opportunity of being heard by the Appellate Division of the Supreme Court in the judicial district wherein the district for which said justices were elected or appointed situated."

is

And it was so re-enacted in the revision of the Greater New York Charter by chapter 466, Laws of 1901. In 1915, after the adoption of the Municipal Code by chapter 279 of that year, section 1383 of the charter was amended by chapter 581, by omitting the word "justices" from said section, thus, while continuing in the Appellate Division

(182 N.Y.S.)

the power of removal of clerks and assistant clerks, apparently eliminating therefrom the justices. But section 132 of the Code of Criminal Procedure, supra, remains in full force and effect. The argument of the respondent is that, the Municipal Court having been made a court of record by chapter 279 of the Laws of 1915, the power of removal was eo instante taken from the Appellate Division, as provided by law, and from such courts as the Legislature might determine, as provided by the Constitution, and transferred to the Sen

ate.

[1, 2] In my opinion the act had no such effect. It was a mere practice act, governing procedure. While in terms it provided that the Municipal Court should be a court of record, it had no effect upon the constitutional provisions, which spoke as of the time of the enactment thereof, nor upon the statutory provisions enacted in accordance therewith. When the Constitution was adopted, the court was not of record. No new court of record could be created thereafter. Section 18, art. 6. I agree that the court did not come within this express prohibition. The Court of Appeals has definitely settled that question, holding that it was a continued, consolidated, and reorganized court, and not a new court. Worthington v. London G. & A. Co., supra. But, being an old court, existing at the time of the adoption of the Constitution, and not being a court of record, jurisdiction was conferred by the Constitution to remove its justices "by such courts as are or may be prescribed by law." At that time jurisdiction had been conferred by law upon the Supreme Court at any General Term thereof. Section 1 of article 6, of the Constitution of 1894 provides: "The Supreme Court is continued with general jurisdiction in law and equity."

Section 2 provides:

"From and after the last day of December, one thousand eight hundred and ninety-five, the Appellate Division shall have the jurisdiction now exercised by the Supreme Court at its General Terms, and such additional jurisdiction as may be conferred by the Legislature."

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As at that time the General Term of the Supreme Court had jurisdiction to remove justices of the peace and justices of inferior courts not of record, and hence justices of the Municipal Court, which was then an inferior court not of record, and as the jurisdiction of the General Term was expressly conferred by the Constitution upon the Appellate Division, the Legislature could not directly or indirectly deprive it of any of the jurisdiction so conferred and possessed.

Article 6 of the Constitution, adopted in 1869, provided that the Superior Court of the City of New York, the Court of Common Pleas of the City of New York, the Superior Court of Buffalo, and the City Court of Brooklyn were continued, with the powers and jurisdiction they then severally had and such further civil and criminal jurisdiction as might be conferred by law.

Under the Code of Procedure the Superior Court of the City of New York had, within its territorial limits, general jurisdiction in equity coequal with that of the Supreme Court, and that jurisdiction

existed at the time of the adoption of article 6, which was on the 6th of December, 1869. In Popfinger v. Yutte, 102 N. Y. 39, 6 N. E. 259, the court held that the provision cited supra, continuing the then existing jurisdiction of the Superior Court, deprived the Legislature of the power of taking away from that court any of the jurisdiction or powers which it possessed at the time of its adoption, and, for that reason, that subdivision 5 of section 263 of the Code of Civil Procedure, which purports to confine the jurisdiction of the Superior Court in actions by judgment creditors to actions on its own judgments, was inoperative.

Hutkoff v. Demorest, 103 N. Y. 377, 8 N. E. 899, 10 N. E. 535, involved the constitutionality of chapter 418 of the Laws of 1886, declaring that the City Court of New York shall be deemed a superior City Court and thereby authorizing an appeal direct from its judgments to the Court of Appeals. Rapallo, J., said:

"At the time of the adoption of article 6, the jurisdiction and powers of the Court of Common Pleas of the City and County of New York were de'clared and enumerated in title 5 of the Code of Procedure (sections 33 and 34). Section 34 is in the following words: 'Sec. 34. The Court of Common Pleas of the City and County of New York shall also have power to review the judgments of the Marine Court of the City of New York, and of the Justices' Courts in that city.' By the act of 1883 (chapter 26) the name of the Marine Court was changed to the City Court, but it still remained the same court, with the same judges and officers, and the same jurisdiction, and the power to review its judgments continued in the Court of Common Pleas under its original grant of power. By chapter 418 of the Laws of 1886, it was sought indirectly and by language, the full effect of which would not readily be observed by a casual reading, to take from the Court of Common Pleas the important power of reviewing the judgments of the Marine Court, now the City Court, and to authorize an appeal from those judgments direct to the Court of Appeals, without requiring that they should first be subjected to review by the Court of Common Pleas. The act is subject to the fundamental objection that it contravenes section 12 of article 6 of the Constitution, by depriving the Court of Common Pleas of its jurisdiction and power to review the judgments of the Marine [City] Court which it possessed at the time of the adoption of the article, and which were thereby rendered permanent and placed beyond the power of the Legislature to take from that court."

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Upon motion for reargument, Rapallo, J., said:

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"Section 22 of article 6 provides that the Legislature may authorize the judgments, decrees and decisions of any court of record of original civil jurisdiction established in a city to be removed for review directly into the Court of Appeals.' It will be observed that section 22 applies only to courts of record, and, in our judgment, was intended to embrace only courts of record which were established in cities at the time of the adoption of article 6, viz. in December, 1869. There were at that time in existence, in addition to the Court of Common Pleas and Superior Court of the City of New York, several other local courts established in cities, viz. the Superior Court of the City of Buffalo, the City Court of Brooklyn, which were courts of record; also the Marine Court of the Cit of New York, the Mayor's Courts of cities, the Recorder's Courts of cities, the District Courts of the City of New York, the Justices' Courts of cities, etc.

"The Constitution evidently did not contemplate the establishment_by_the Legislature of other superior City Courts. By section 19 of article 6 the Legislature was authorized to establish inferior local courts, but the Superior Courts established in cities were enumerated in the Constitution, and their powers and jurisdiction made permanent, but no authority was given to es