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(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 Senate.
[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-live, 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."
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.
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."
Upon motion for reargument, Rapallo, J., said:
“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 Leg. islature 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
(182 N.Y.S.) tablish additional Superior Courts in cities; and in Landers v. Staten Island R. R. Co., 53 N. Y. 450, we held that the Legislature had no power to extend the jurisdiction of the City Court of Brooklyn, so as to deprive it of its local character.
"Section 22 of article 6 was, in our judgment, intended to authorize appeals direct to the Court of Appeals from the courts of record in existence at the time of the adoption of the article, whose judgments were at that time reviewable, in the first instance, in the Supreme Court. The Marine Court of the City of New York was a court of great importance, of ancient origin, and transacting a very large amount of business.
Yet it was not a court of record, in the legal sense of the term, until 1872. The power to review its judgments, in the first instance, was vested by law in the Court of Common Pleas.
By limiting the power of the Legislature to authorize appeals directly to this court to appeals from judgment of courts of record, we think that it was the intention of section 22 of article 6 to exclude the Marine Court from its operation."
 I am of the opinion, applying the doctrine laid down in these cases, that the Legislature would be without power to deprive the Supreme Court and its Appellate Divisions by direct legislation of the jurisdiction conferred upon it by the Constitution. I am further of the opinion that, by creating the Municipal Court in 1915 a court of record, which court at the time of the adoption of the Constitution was a court not of record, the Legislature did not deprive the Appellate Division of the power to remove its justices, and that the Legislature did not, by the omission of the word "justices” in its amendment to section 1383 of the Consolidated Act, quoted supra, transfer the power to remove the justices of the Municipal Court from the Appellate Division, which is a court, to the Senate, which is not a court, and that this Appellate Division has full constitutional jurisdiction and power to entertain and dispose of the charges presented to it against the respondent.
The objection to its jurisdiction is therefore overruled, and the respondent is given 20 days from the service of the order to be entered hereon to file and serve his answer to the petition. Settle order on notice. All concur.
CADMAN V. GARCIA. (Supreme Court, Appellate Term, First Department. June 17, 1920.) Brokers 73—No defense that commission belonged to plaintiff's employer.
In action by superintendent of apartment house in which defendant had an apartment for commission for his procuring a sublessee of defendant's apartment, defendant could not defend on the ground that, if any commission was earned, it belonged to plaintiff's employer; that being a matter between plaintiff and his employer, and no concern of defendant.
Lehman, J., dissenting.
Appeal from Municipal Court, Borough of Manhattan, Ninth District.
Action by Charles P. Cadman against Maria Garcia. From a judgment for defendant, after a trial before the court without a jury, plaintiff appeals. Reversed, and new trial ordered.
For other cases see saine topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Argued February term, 1920, before LEHMAN, MULLAN, and FINCH, JJ.
Clarence Kimball, of New York City (George W. Files, of New York City, of counsel), for appellant.
Goldsmith, Cohen, Cole & Weiss, of New York City (Harry J. Leffert, of New York City, of counsel), for respondent.
FINCH, J. The action was for 5 per cent. commission claimed by plaintiff for procuring a tenant as sublessee of defendant's apartment. It appears that defendant was lessee of an apartment, and desired to sublet the same. Plaintiff was the superintendent of the apartment house, and defendant asked him to put the apartment in the hands of a broker, and then inquired, if the broker rented it, would the plaintiff obtain part of the commission ? Plaintiff replied that the only way that he could get part of the commission would be to rent it himselt. Whereupon defendant said, "All right; go ahead and see what you can do." This is plaintiff's version; but the defendant's version is not materially different, except that defendant testified that she said that, if the plaintiff rented the apartment, she would give him something.
It is conceded that the subsequent sublessee came to the apartment house inquiring for an unfurnished apartment. There was none to be had, and he left the house, when plaintiff ran after him and inquired if he would not be interested in a furnished apartment. Upon his answering in the affirmative, plaintiff took him to the defendant's apartment, and he subsequently entered into a lease with the defendant at the office of her lawyer. Defendant offered plaintiff $20, which plaintiff refused, and demanded the customary 5 per cent. commission on the gross rental. The court below rendered judgment for the defendant, apparently on the ground that, if there was a commission earned, it belonged to the employer of the plaintiff. In this the learned court was in error, since the only contract alleged by the plaintiff was one made with the plaintiff as principal, and not as agent. If plaintiff's employer has any claim against the plaintiff, that is a matter between the employer and the plaintiff, and does not concern the defendant. The plaintiff certainly is entitled to at least the reasonable value of his services.
It follows that the judgment should be reversed, and a new trial ordered, with $30 costs to appellant to abide the event.
MULLAN, J., concurs.
(182 N.Y.S.) (192 App. Div. 435)
PEOPLE v. SALTER. (Supreme Court, Appellate Division, Second Department. June 25, 1920.) Criminal law Ow1184—Where conviction was right, but sentence was not
lawful, Appellate Division may correct judgment.
Where a judgment of conviction was correct, but the sentence was unlawful, the appellate court, under Code Cr. Proc. 8 543, may correct the judgment to conform to the judgment or finding, and need not reverse, because the erroneous sentence does not affect the rightfulness of the conviction.
On motion for reargument. Motion denied, and former opinion affirmed.
For former opinion, see 191 App. Div. 723, 182 N. Y. Supp. 252. Argued before JENKS, P. J., and RICH, PUTNAM, BLACKMAR, and KELLY, JJ.
Ralph E. Hemstreet, Asst. Dist. Atty., of Brooklyn, for the motion. I. Erlich Wolfe, of Brooklyn, opposed.
PER CURIAM. We concluded that the conviction was right, but that the sentence was not lawful. We therefore proceeded, in the words of the statute, to "correct the judgment to conform to the judgment or finding. Section 543, Code Cr. Proc. But we were not required to reverse the judgment, as a reading of this statute shows; for after this provision for correction the statute reads that "in all other eases" there must be reversal or affirmance or reduction. There was no need of reversal. The erroneous sentence does not affect the rightful conviction. People ex rel. v. Kelly, 97 N. Y. 215.
Inasmuch as we cited People v. Griffin, 27 Hun, 595, both in the case at bar and in People v. Bretton, 144 App. Div. 282, 129 N. Y. Supp. 247, the learned district attorney now argues that Griffin's Case sustains his proposition that the setting aside of the sentence was a reversal of the judgment, because in Griffin's Case, to quote his language, “the judgment was reversed because of the illegality of the sentence." It is true that the court in Griffin's Case say, "The judgment upon the defendant Griffin must be reversed;" but this statement follows: "And the prisoner brought before this court for judgment on his conviction.” Moreover, the decision of the court is:
"Conviction and judgment affirmed. Sentence as to Griffin set aside, and defendant Griffin to be brought before the court for sentence as for an as. sault and battery only."
Thus it is plain that the “judgment” referred to by the court, which was disturbed as the "judgment upon the defendant Griffin," was the sentence. Such use of that word was entirely proper. Manke v. People, 74 N. Y. 424; Freeman on Judgments, § 2. In this very section 543 we find such use of the word "judgment," when it provides that an "erroneous judgment” may be corrected to conform to the judgment or finding. There is like use of the word in People v. Bauer, 37 Hun, 408, where the court say in its opinion that the judgment was
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