NYS Judiciary Historical Timeline

Giovanni da Verrazzano, an Italian explorer, becomes the first European to visit New York Bay.  He arrives there while exploring the New World’s Atlantic coast at the behest of the King of France.

The Half-Moon, captained by Henry Hudson and sailing under the Dutch flag, anchors in New York Bay. Hudson had been hired by the Dutch East India Company to help find a northeast passage that would provide a shorter route to India.[1]

[1] Ellis, David M., et al, A Short History of New York State, Cornell Univ. Press, 1957, p. 19.

Albany, then called Fort Nassau, is founded as a trading post.

The Dutch government grants a charter over the lands of New Netherland to the Dutch West India Company on June 3, 1621.  “New Netherland” includes lands located on the east coast of North America between the Demarva Peninsula (including most of Delaware and portions of Maryland and Virginia) and southwestern portions of Cape Cod.  It incorporates areas of New York, New Jersey, Delaware, Connecticut, Rhode Island, and Pennsylvania.  The Dutch West India Company is a commercial corporation chartered by the Dutch government to found colonies and develop sources of commerce on the African and North American coasts and in the West Indies.  The Company is given a trade monopoly in the Americas[2] and is invested with comprehensive powers, including authority to employ soldiers and fleets; to build forts; to make treaties; to appoint governors and other public officers; and to take steps necessary to maintain order and administer justice.

[2] Ibid.

The New Netherland Colony is formally organized by the Dutch and a settlement is established in what later becomes known as Manhattan.  The first colonial Director is Cornellis Jacobsen May, who serves for only a short period and is then succeeded by Willem Verhulst who, likewise, serves but a year or two.[3]  At the time, the number of colonists is so small that there is no need for institution of any formal justice system.[4]

[3] The colonial directors are appointed by the Board of Directors of the Dutch West India Company.  A council of four is created to assist each director – giving him advice, voting on local regulations, and serving as a court in those few instances where one is necessary.  Ibid., p. 22.

[4] Lincoln, Charles Z., Constitutional History of New York, Vol. 1, The Lawyers Co-Operative Publishing Company, 1906, p. 455.

Fort Nassau (site of future Albany) becomes Fort Orange.  It is the first permanent Dutch settlement in New Netherland, becoming home to some 34 Dutch families who had been recruited by the Dutch West India Company.  A majority of these first settlers are Walloons, exiles from what is today Belgium.  They are Protestants from part of the Netherlands then under the rule of Catholic Spain and they are seeking religious freedom in the new colony.[5]

[5] Shorto, Russell, The Island at the Center of the World, Random House (Vintage Books), 2004, pp 40, 45; Macy, Harry, Jr., The Original Families of New Netherland, New York Genealogical and Biographical Society (1999).

Peter Minuit becomes Director of the New Netherland Colony.  Such governmental authority for the Colony as is put in place is built on a Dutch model.  Together with his council (including Dutch West India officials and two colonists), Minuit exercises all legislative, executive, and judicial powers in the Colony.  Collectively, these officers are referred to as the New Netherland Court of Justice and their judicial authority extends to civil, criminal, and admiralty matters.  And from 1629 on, following introduction of the patroon system in the Colony, the New Netherland Court of Justice also exercises appellate jurisdiction over decisions of the patroon courts and other local courts.  Along with the Schout (an office, sometimes referred to as the Schout-Fiscal, that combines the powers of a prosecutor and a sheriff), these officers are subject to the appellate jurisdiction and supervision of Dutch authorities in Amsterdam.

In November, Director Minuit purchases Manhattan Island from the Lenape Indians.  While a myth persists that the purchase price was $24 worth of beads and other trinkets, the actual price is for 60 guilders worth of trade goods (or slightly more than $1,000 today).[6]

[6] As reported to the Directors of the Dutch West India Company by Peter Schaghen, a representative of the Dutch States General, following the arrival in Holland of a ship from New Netherland in the late summer of 1626.  The present-day value of 60 guilders has been calculated by the International Institute of Social History, Amsterdam.

On June 7, 1629, the Dutch West India Company grants a Charter of “Freedoms and Exemptions” (sometimes referred to as the Charter of “Privileges and Exemptions”), introducing the patroon system into the New Netherland Colony.  In addition to providing land grants to the patroons, the Charter sets forth rules for the governance of their lands.  These rules establish each patroon as chief magistrate of his lands.[7]

[7] Lincoln, Charles Z., Constitutional History of New York, Vol. 1, The Lawyers Co-Operative Publishing Company, 1906, p. 8.  See also Scott, Henry, The Courts of New York State, Wilson Publ. Co., 1909, pp 329-332.  While several patroonships were established in New Netherland, only one — Kilianen Van Rensselaer’s Rensselaerwyck — proved to be successful.  The 1629 Charter. Of Freedoms and Exemptions, Historical Society of the New York Courts.

Peter Minuit is recalled to Holland.  He is succeeded as Director of the Colony by Wouter van Twiller (1633) and then by Willem Kieft (1638).  By the time Kieft arrives, New Amsterdam is a collection of 80-90 structures and perhaps 400 people.  Principal colonial officials include Director Kieft, the provincial secretary, and the Schout-Fiscal.  The Director makes the rules by fiat and, with his appointed council (consisting of two members of which he is one),[8] sits as a court to hear both civil and criminal cases brought by the Schout.

Kieft is a reckless and ineffective leader.  The colonists react by demanding the establishment of judicial and municipal tribunals like those they had enjoyed in Holland.  There, for more than a century, every town and village had had its own local tribunal.  This tribunal combined the attributes of a court and a municipal government.  It consisted of several magistrates (called the burgomaster [a kind of mayor], the schepens [a kind of alderman], and the schout [the prosecutor/sheriff]).  While there was no formal system of popular representation, generally a town’s propertied individuals would annually elect men who then would choose the burgomaster and schepens.  Kieft responds by creating a council of 12 men nominated by the colonists.  This is the first popularly chosen body in what later becomes New York State.[9]

[8] Shorto, Russell, The Island at the Center of the World, p. 114.

[9] Ibid., p. 121.

The Dutch West India Company adopts a further Charter of Freedoms and Exemptions for the New Netherland Colony.  In part, this Charter expressly directs that the colonial Director (now being referred to as the “Governor”) and his council act as a court to determine all questions concerning the Company’s rights and all other complaints; and, also, that they act as an orphan’s and surrogate’s court (where they are to observe the customs of Amsterdam and the principles of Roman Dutch law)[10], and as judges in criminal and religious matters.  Provision is also made for appeals from local tribunals to the Governor and his council from judgments for more than 100 guilders and from criminal sentences.[11]

[10] Setaro, Franklyn C., The Surrogate’s Court of New York:  Its Historical Antecedents, 2 N.Y.L. Sch. L. Rev. (1956), p. 286..

[11] Lincoln, Charles Z., Constitutional History of New York, Vol. 1, pp 10-11.

Adriaen Van der Donck arrives at New Netherland.  Hired by the patroon Killian Van Rensselaer as a schout for Rensselaerwyck, Van der Donck becomes the first lawyer in the colony.[12]

[12] Shorto, Russell, The Island at the Center of the World, p. 103.

The first town charters are issued in the New Netherland colony–initially, to English colonists on Long Island.[13]

[13] Klein, Milton M. (ed), The Empire State:  A History of New York, Cornell University Press, 2001, p. 62.

Peter Stuyvesant becomes the colonial Governor, replacing Willem Kieft who had been recalled to Holland the previous year.  Governor Stuyvesant establishes a court of justice to decide all civil and criminal cases, with himself as the presiding justice and the colonial Vice Director and two local citizens he selects to assist him.  He also establishes a board of nine men to serve as a permanent advisory body[14] and to assist the court of justice by providing a source of arbitrators to whom civil cases might be referred.[15]  This arbitral service reflects a common feature of Dutch jurisprudence.  Decisions of the arbitrators (who serve in rotating panels of three) are binding on the parties to the affected proceedings, subject to appeal to the Governor and his council.

The members of the tribunal of nine men are chosen by the Governor from 18 men selected by the colonists.  This tribunal is created in response to continuing public discontent with the absence of popular government and provides a vehicle for some limited input from the colonists.

In 1649, Adrien Vander Donck, the first lawyer in the Dutch Colony, serves as the president of the nine men.  A political activist, he is an antagonist to Governor Stuyvesant, leading disaffected colonists in efforts to campaign for representative government in New Netherland.

[14] Some regard this board as the first legislative government in New Amsterdam.  See Lankevich, George J., New York City:  A Short History, New York University Press, 1998, pp 12-13.

[15] Ellis, David M., et al, A Short History of New York State, Cornell Univ. Press, 1957, p. 24.

The Dutch governing body in Holland, the States-General, issues a revised Charter of Freedoms and Exemptions[16] and orders that a new court be established in the Colony consisting of a Schout, two Burgomasters, and five Schepens, all to be elected popularly.  This order is a further response to continued colonial protests about the dictatorial management of the New Netherland Colony and to provide an effective forum for the adjudication of debts, especially those owed local merchants by the Dutch West India Company.[17]  The Schout, Burgomasters, and Schepens Court mandated by the States-General is modeled after the judicial system in place in Holland.

When this court is first established by Governor Peter Stuyvesant in 1653, he determines to make all appointments to it.

Formally known as the “Worshipful Court of the Schout, Burgomasters and Schepens,” this court enjoys unlimited civil and criminal jurisdiction (in non-capital cases), and usually decides cases before it without a jury.  It also acts at times as a court of admiralty and as a probate court (exercising jurisdiction over wills and the estates of widows and orphans).[18]  While referred to as a “court” and effectively constituting the first regularly sitting formal court system for the Colony, the body also discharges executive and legislative responsibilities:  although their duties are nominally judicial, the Schout combines the offices of a sheriff and a district attorney; the Burgomasters are like mayors; and the Schepens are like aldermen.  At this point, New Amsterdam is still so small that sharp governmental divisions remain unnecessary.

On the civil side, the Court follows fairly simple procedures and makes frequent use of arbitrators chosen by the litigants or appointed by itself.  On the criminal side, the Schout serves as a prosecutor.

Shortly after the Court is established in New Amsterdam, similar courts are set up in Breuklin (Brooklyn) and elsewhere on Long Island (in the area of the so-called “five Dutch Towns”).[19]  Also, in 1652, Governor Stuyvesant, acting on his own prerogative, establishes a court in Albany that is independent of the patroon courts.[20]

From all these courts, appeal may be taken to the Governor and his council at New Amsterdam (the colonial seat).

[16] Lincoln, Charles Z., Constitutional History of New York, Vol. 1, p. 12.

[17] Klein, Milton M. (ed), The Empire State:  A History of New York, p. 99.

[18] Scott, Henry, The Courts of New York State, pp 333-340.

[19] Ibid.

[20] Ibid.

With the signing of a municipal charter, New Amsterdam becomes a city.

A separate court, the court of orphan masters, is created to exercise jurisdiction over matters involving orphans.  This court, a forerunner of today’s Surrogate’s Court, is established because the Schout, Burgomasters, and Schepens Court is overwhelmed with the number of children orphaned during a recent Native American war in the Colony.

The Flushing Remonstrance–a plea for religious toleration for Quakers in New Netherland–is delivered to Governor Stuyvesant following his imposition of a law against the hosting of Quaker missionaries in the Town of Vlissingen (later Flushing).  The Remonstrance declares that the people of Flushing will not obey this law.  It is an early, if somewhat incomplete, effort to recognize some liberty of conscience among the Dutch colonists; and it is regarded by many as a precursor of the First Amendment of the United States Constitution.

Governor Stuyvesant, along with members of the Colony’s orthodox Calvinist clergy, does not react well to the Remonstrance.  They spend the next four years trying to root out Quakerism in the English towns of Long Island.[21]

[21] Klein, Milton M. (ed), The Empire State:  A History of New York, p. 86.

By this time, the Colony’s judicial structure consists of: 

1. The patroon courts;
2. The Burgomaster, Schepens, and Schout Court in New Amsterdam;
3. The Burgomaster knockoffs on Long Island, in Albany, Canorasset, and Middleburgh; and
4. The Appellate Court of Amsterdam.

The British seize New Netherland and rename it New York.[22]  King Charles II, by royal patent, gives his brother James, the Duke of York and presumptive heir to the British throne, property rights granting him the entire Atlantic coast, from Maine to the Allegany Mountains and that portion bounded on the east by the Connecticut River and on the west by the Delaware River.  Under this patent, James enjoys virtually unlimited authority, including plenary power to make laws provided they are not inconsistent with the common law of England.[23]  To help implement this authority, he appoints Colonel Richard Nicolls to serve as colonial Deputy-Governor and his agent.[24]

The formal transfer of power from the Dutch to the British is effectuated through the Articles of Capitulation (or, as they are also known, the Articles of Surrender[25]).  These Articles form the basis for Dutch surrender of the Colony.  Their terms, agreed to between Peter Stuyvesant (who, thereafter, retires from public life) and Deputy-Governor Nicolls, provide that:

1. Dutch colonists may, if they wish, return to Holland;
2. Dutch colonists who wish to remain in New York may do so, and, if they do, continue to enjoy their own customs and rights to inheritance;
3. Contracts made during Dutch rule will continue to be subject to Dutch law;
4. Past judgments of Dutch courts may not be called into question;
5. Inferior Dutch civil officers/magistrates may remain in office for the duration of their existing terms;
6. All newly-selected magistrates must take an oath of allegiance to the British Crown; and
7. Dutch colonists will enjoy liberty of conscience.[26]

At the time of Stuyvesant’s surrender to the British, New Netherlands consists of only about 8,000 colonists occupying small settlements on New York Bay and along the banks of the Hudson.[27]

[22] At the same time, New Amsterdam is renamed “New York” and Beverwijck is renamed Albany (recognizing that the James, the Duke of York, is also the Duke of Albany).  Shorto, Russell, Taking Manhattan, W. W. Norton Pub. Co, 2025, p. 271.

[23] Ibid., p. 30.

[24] Nicolls is designated “Deputy-Governor”, and not “Governor”, because, as the new owner of the province, the Duke of York is technically the Governor.  Shorto, Russell, Taking Manhattan, p. 271.

[25] Shorto, Russell, Taking Manhattan, p. 265.

[26] Ibid., p. 28.  See also Chester, Alden, Courts and Lawyers of New York, A History:  1609-1925, Vol. I, p. 289.

[27] Ibid., p. 18.

The Duke’s Laws, delivered by James, the Duke of York, to Deputy-Governor Nicolls and intended to serve as New York’s first legal code, are ratified at a convention of delegates from each of 17 towns in the English-controlled areas of the Colony held at Hempstead, Long Island.[28]  Although they were not formally excluded from the convention, there are very few Dutch delegates in attendance.[29]  This is because there is a perception that Deputy-Governor Nicolls did not intend that the Duke’s Laws, although nominally framed for the governance of the entire colony, should supersede Dutch law in those areas; and that they should only apply in the formerly British-controlled areas (eastern Long Island and parts of Westchester).

The Duke’s Laws, which are based on English law, Roman-Dutch law, and the laws and regulations of Britain’s New England colonies,[30] provide for a new judicial organization in the province.  This includes creation of the office of Justice of the Peace (commissioned for various towns) and institution of the following courts:

• A local court for each town to be held every few weeks by the town constable and the town’s overseers for the trial of small (under £5) civil actions.  While these courts are provided in response to calls for self-government–the overseers are subject to popular election by freeholders–they can also be presided over by Justices of the Peace appointed by the Governor.  Appeals from the judgments of these courts are to be taken to a Court of Sessions.
• A Court of Sessions originally for each of the three main three districts, or ridings (east, west, north), into which the Colony had been divided (the Towns of Long Island, Westchester, and Staten Island, respectively), but later also for New York City and plantations in the upper Hudson Valley.  Meeting twice annually and presided over by all the Justices living in the riding, the Court of Sessions is the workhorse of the system, exercising non-capital criminal jurisdiction and civil jurisdiction in cases involving more than £5 but less than £20.  All actions except those involving equity jurisdiction are to be tried by juries (comprised of the overseers of the towns in each riding).  The Court of Sessions, which will sit continuously in New York until 1894,[31] also sits as a probate court, exercising jurisdiction today entrusted to Surrogate’s Court — provided that the Governor or one of his councilors should be present on such occasions.  Appeals from judgments of a Court of Sessions can be taken to the Court of Assizes.
• A Court of Assizes (or General Assizes) for the entire colony.  This court sits once annually in New York City in late October (although the Governor could call it into session more frequently) and is presided over by the Governor and his council, plus any of the provincial Justices of the Peace wishing to attend.  The court is primarily an appellate forum to which appeals from all inferior tribunals can be taken but it also enjoys original jurisdiction of all cases, typically taking cognizance of equity cases, capital crimes, and civil actions involving more than £20.  Notably, this Court exercises executive and legislative powers as well as judicial authority.[32]

In addition to establishing these courts, the Duke’s Laws empower the Governor to provide for a Court of Oyer and Terminer, presided over by judges that he names, to exercise jurisdiction over a capital case where the next sitting of the Court of Assize is more than two months away.

Notably, there is no provision for a formal Court of Chancery under the Duke’s Laws.  All the established courts enjoy equity jurisdiction (to be exercised by their judges sitting without juries) within the limits otherwise applicable to them.

Finally, the Duke’s Laws also introduce the jury system in New York.

[28] Ibid. p. 30.

[29] See http://moglen.law.columbia.edu [Chapter 1.  Beginnings 1664-1691, at pp 7-8].

[30] Scott. Henry Wilson, The Courts of the State of New York: Their History, Development and Jurisdiction (1909).

[31] Scott, Henry, The Courts of New York State, pp 347-352.  The Courts of Sessions will be abolished under New York’s 1894 Constitution except in New York County, where it will continue to serve until its abolition in 1962.

[32] Ibid, pp 345-346.

In June 1665, Deputy-Governor Nicolls abolishes the remaining Dutch forms of government in New York, including the Court of Schout, Burgomasters, and Schepens in New York City.[33]  At the same time, he establishes a new municipal system for the City — including a Mayor, Aldermen, and a Sheriff — in keeping with English custom.  This new system includes a court to be known as the Mayor’s Court, the members of which are to be the Mayor, the Aldermen, and the Sheriff.  This Court is to exercise civil jurisdiction. [34] At first, introduction of the Mayor’s Court is more a matter of form than substance.  There is no radical departure from the Court of the Schout, Burgomasters, and Schepens except that regular trial by jury is introduced.[35]  By and large, over the next several years, Dutch law continues to be followed.[36]

[33] Nelson, William E., Legal Turmoil in a Factious Colony: New York, 1664-1776, 38 Hofstra Law Rev., p. 19.

[34] Scott, Henry, The Courts of New York State, pp 341-344.

[35] Ibid.

[36] Over the next 156 years, however, the Mayor’s Court will serve as the Municipal Court for New York City.  See Chester, Alden, Courts and Lawyers of New York, A History:  1609-1925, Vol. I, p. 336.

The second Anglo-Dutch War ends with the Treaty of Breda pursuant to which the Dutch Republic formally cedes New Netherland to the British.

There is a brief hiccup in British rule.  Dutch warships sail into New York harbor and the British surrender to them whereupon Dutch rule is restored in the province.  This proves to be but a brief restoration, however, as British rule returns the following year (1674) with the signing of the Treaty of Westminster (ending the third Anglo-Dutch War). 

With the return to British rule, Edmund Andros is named Governor of the province of New York.  He commences negotiations for the handover of Dutch territories with the Dutch Governor, Anthony Colve.  This handover takes place in late 1674.  By its terms, existing property holdings are left undisturbed, and the province’s Dutch inhabitants are permitted to maintain their Protestant religion.

The people of the colony call for a legislative assembly.[37]

[37] Lincoln, Charles Z., Constitutional History of New York, Vol. 1, p. 27.

The Duke of York directs Governor Andros to establish a Court of Admiralty.  This Court will not be a regularly sitting tribunal; rather, the Governor can call it into being on an ad hoc basis upon issuance of a special commission.  Even with introduction of this Court, most admiralty matters are actually heard in the Mayor’s Court.

Governor Andros is recalled to England.  He is replaced by Thomas Dongan in 1682. It is a time of fiscal crisis and much discontent in the province.  In his commission from the Duke of York, Governor Dongan is given responsibility for erecting such a court structure as he deems necessary, which structure should be operative until the Duke directs otherwise.  Governor Dongan also is instructed to call a representative assembly.  This is largely in response to widespread public unrest across New York and general resistance to the collection of import duties.[38]

[38] Ellis, David M., et al, A Short History of New York State, p. 32.

New York’s provincial Assembly is convened in October by Governor Dongan at Fort Amsterdam (or, as it is later known, Fort James), sitting at the southern tip of Manhattan near the present Battery.  This body is empowered to pass laws subject to approval by the Governor and by the Duke of York.[39]

[39] Lincoln, Charles Z., Constitutional History of New York, Vol. 1, p. 430.

The Assembly adopts a Charter of Liberties and Privileges, which provides for religious toleration and outlines a form of government that, with minor modifications, remains in place until the American Revolution.  Many have regarded this Charter, which closely resembled modern constitutions in form and substance, as New York’s original constitution.[40]

[40] Ibid., p. 433.

Also in 1683, the provincial Assembly enacts “An Act to settle courts of justice”.  This Act continues the office of Justice of the Peace while recognizing four distinct tribunals:

• A Town Court for each town for the trial of small (up to 40 s) causes but having no criminal jurisdiction.
• A Court of Sessions in each county to sit quarterly or half-yearly (except in Albany, where it is to sit three times each year, and in New York City, where it is to sit four times each year) and to have unlimited civil and criminal jurisdiction.
• A Court of Oyer and Terminer and General Gaol Delivery for the entire province to exercise both original and general appellate jurisdiction and to replace the Court of Assizes.  There are two judges of this Court commissioned by the Governor each of whom, together with four local Justices of the Peace, is to hold a circuit of the court in every county in the colony twice yearly.
• A Chancery Court colony-wide to be held by the Governor or his council, with the Governor empowered to appoint a Chancellor to serve in his stead.  Sitting bi-monthly and considered to be the highest provincial court, Chancery Court has jurisdiction over all matters in equity.

Governor Dongan makes only one change in relation to the act creating this court structure.  He establishes a Court of Judicature (or Court of the Exchequer), which is to be held monthly by the Governor and his council for the purpose of determining suits or matters arising between the King and inhabitants of the province concerning lands, rents, rights, profits, and revenues.

The New York City Mayor and aldermen together petition Governor Dongan for a City charter.  They also request that the Governor and his council appoint a Recorder to serve as a judge and to assist the Mayor and the aldermen in managing the City.  Governor Dongan complies with this last request and the Recorder presides over the City’s Court of Sessions.[41]

[41] Chester, Alden, Courts and Lawyers of New York, A History:  1609-1925, Vol. I, pp 413-414.

The Assembly abolishes the Court of Assizes.  The Governor acts as Surrogate and he and his council constitute the Court of the Exchequer.

Upon the death of Charles II, the Duke of York becomes King James II of England.  Henceforth, New York is no longer the private possession of a royal English subject but, instead, an American province of the Crown.[42]  King James proceeds to veto the 1683 Charter of Liberties and Privileges approved by the provincial Assembly.

[42] Lincoln, Charles Z., Constitutional History of New York, Vol. 1, p. 31.

King James issues a new commission to Governor Dongan, retaining him in office with the title, “Captain General and Governor in Chief”.[43]  No provision is made for a colonial Assembly.  Under Dongan’s new commission, appeals in court cases can be taken to the Governor and his Council where the amount involved exceeds £100; and further appeal can be taken to the King and his Privy Council where the amount involved exceeds £300.  The new commission also provides the Governor and his council with exclusive legislative power in the province; that exercise of this power is subject to approval by the King and his Privy Council; that the Governor may create courts of law or equity, as needed; and that the Governor is to appoint Judges and Justices of the Peace.

[43] Ibid.

Governor Dongan grants New York City a new municipal charter, which, among its provisions, includes several modifying the local court structure.  At the same time, Dongan grants a charter conferring municipal status upon Albany (for the next 100 years, or until 1785, Albany and New York City remain the only cities in New York).  This Albany charter (referred to locally as the Dongan Charter) is almost identical to the one awarded to New York City.[44]

The most significant aspect of New York City’s new charter is its clear separation of the legislative and judicial functions.  Before this charter, these functions had been combined in the City’s Mayor’s Court.  Under the new charter, however, while the same officers will discharge both functions, they will do so in discrete settings.  Also separated under the charter are civil and criminal judicial powers.  The result is that there now are three tribunals for the City:

• A Common Council, in which the officers sit to discharge legislative duties;
• The Mayor’s Court (technically, a Court of Common Pleas, although it is popularly referred to at the time by its Dutch title, the “Mayor’s Court”), in which civil actions are tried; and
• The Court of Oyer and Terminer (and later the Court of Quarter Sessions) for the trial of criminal cases.  In addition, the City’s new charter establishes a Court of Chancery and a Court of the Exchequer. [45]

Later, after the American Revolution and New York’s attainment of statehood, the Mayor’s Court will become the Court of Common Pleas for the City and County of New York.[46]

The new charter for Albany establishes the first municipal officers for the city (at that time, the northernmost outpost in the New York province), which include a mayor, a recorder, and two aldermen plus two assistant aldermen from each municipal ward.  Together these officers comprise the Common Council, and all of them, except the assistant aldermen, exercise judicial powers along with their legislative authority.

[44] Ibid., p. 33.

[45] Chester, Alden, Courts and Lawyers of New York, A History:  1609-1925, Vol. I, pp 416 et seq.  See also Scott, Henry, The Courts of New York State, pp 341-344.

[46] Scott, Henry, The Courts of New York State, pp 341-344.

With the coming of England’s Glorious Revolution, James II is dethroned and succeeded by William of Orange who becomes King William III of England.

Governor Edmund Andros returns to New York two years following his appointment as Governor of the Dominion of New England.  The Dominion is a short-lived union of English colonies in New England and the mid-Atlantic region.  Before he is deposed, King James had ordered the inclusion of New York in that Dominion.

There is some evidence that changes in the Dominion’s judiciary, made two years before, may perhaps have been imported into New York upon its entry into the Dominion.  These changes include institution of quarterly Sessions Courts to exercise criminal jurisdiction and inferior Courts of Common Pleas with very limited civil jurisdiction.  There also is a Superior Court of Judicature, which has broad civil jurisdiction and limited appellate authority, and a Court of Chancery.

In the wake of the so-called Boston Revolt — an uprising following King James’ deposition and sparked by public discontent with the administration of Governor Andros and English rule in the Dominion — Governor Andros is arrested and returned to England for trial.  Shortly thereafter, Joseph Dudley, the Chief Judge of the Dominion, is likewise arrested and returned to England.

Andros’s deputy in New York, Francis Nicholson, is very unpopular.  His delay in recognizing the new Protestant British monarchs, William and Mary, furthers local fears of a French invasion and that there is a plot afoot to restore Catholic power in New York.  These fears lead to an insurrection and the informal formation of a Committee of Safety to defend the province against any invasion and Catholic efforts to destroy Protestantism in its territory.  This Committee is headed by a wealthy merchant, Jacob Leisler, who earlier had served as a judge of the Admiralty Court and Justice of the Peace.  Leisler declares himself to be the acting Lieutenant-Governor of the province.  During his tenure (which comes to be known as Leisler’s Rebellion), New York’s representative assembly is reconstituted and other steps are undertaken to weaken the ruling oligarchy of patroons, merchants, and landlords for the benefit of the province’s lower classes.[47]  Also, property is purchased to establish a French Huguenot settlement north of Manhattan, which later becomes the city of New Rochelle.[48]

[47] Lincoln, Charles Z., Constitutional History of New York, Vol. 1, p. 34.  See also Wikipedia, “Jacob Leisler”, last edited 1/28/2025, https://en.wikipedia.org/wiki/Jacob Leisler.

[48] Id.

Governor Henry Sloughter arrives in New York.  Sloughter, whose commission designates him as Captain-general and Governor-in-Chief of New York, immediately has Leisler arrested on a charge of treason.  After trial by a special court of Oyez and Terminer, Leisler is convicted and sentenced to hang.[49]

[49] Ellis, David M., et al, A Short History of New York State, p. 35.

Sloughter’s commission also authorizes him to call a provincial Assembly.  This Assembly first meets on April 9, 1691.  It proves to be the first permanent representative body in New York.[50]  At this point, the province consists of fewer than 20,000 people.[51]  The Assembly’s first major act is to enact a new Charter of Liberties recognizing the rights of people of the province and setting forth the manner of provincial government.[52]

[50] Ibid.

[51] Ibid.

[52] Lincoln, Charles Z., Constitutional History of New York, Vol. 1, p. 439.

Prodded by Governor Sloughter, New York’s provincial Assembly enacts a statute prescribing the provincial court system.  Entitled “An act for the Establishing Courts of Judicature for the Ease and benefitt of each respective Citty, Town and County within this Province”, this statute includes provisions creating a court structure that largely continues courts then in operation and that is in most respects generally modeled after the English court system.[53]

Of particular note is the fact that the new provincial court structure is the result of legislative action.  Prior to this time, English tradition had uniformly dictated that court structures be decreed by the King and his subordinates.  Sloughter’s commission as Governor exemplified this tradition, leaving creation of the provincial courts to him subject to specific directions that he not establish any courts that had not theretofore been created.  Governor Sloughter, however, perhaps in response to public calls for more representative government, disregards his commission and, instead, recommends that the Assembly enact legislation erecting the provincial courts.  The resulting statute provides for:

• Justice of the Peace Courts (to replace existing Town Courts).  Presided over by lay people appointed by the Governor, these courts serve as the principal provincial courts.  Ordinarily they sit individually, in panels of two or three Justices of the Peace, although occasionally — twice yearly in all counties except New York and Albany; four times yearly in New York City, where it is colloquially referred to as “Quarter Sessions”; and three times yearly in Albany — they sit together as a Court of Sessions.  Individually, Justices of the Peace have power to try small civil cases (involving damages of up to 40 s) and certain criminal matters, and to enforce a wide variety of local administrative regulations (e.g., game laws, fire regulations, licensing ordinances).  Also, where specially commissioned (in each county except Albany and New York), Justices of the Peace can sit as a Court of Common Pleas to hear civil matters.  In less populated areas of the province, they also can be charged by the Governor to hold Courts of Common Pleas to hear probate and intestate succession cases — cases that might otherwise be heard by the Governor himself.  Sometimes Justices sitting as a Court of Common Pleas can be joined by a Supreme Court Justice.  When sitting as a Court of Sessions, Justices of the Peace exercise criminal jurisdiction — although they also can exercise criminal jurisdiction out of Sessions Court over relatively small criminal matters.  Also, in the Court of Sessions, which is substantially modeled after the English Quarter Sessions’ Courts, Justices exercise executive, legislative, and administrative responsibilities.  For instance, they oversee maintenance of jails, stocks, and whipping posts; discharge certain social welfare-related tasks like supervising the local overseers of the poor; and promulgate various regulatory ordinances (bearing on such matters of county concern as tax collections, liquor retailing, and, more generally, the morals, manners, health, and welfare of the community).  Various laws adopted by towns must be confirmed in the Court of Sessions.  From time to time, beyond their roles in and out of this Court, Justices will sit in Mayor’s Courts in Albany and New York City.  These Courts are known as Courts of Common Pleas and they hear particular commercial cases.
  Conferring civil jurisdiction over relatively small matters upon the provincial courts represents a significant departure from English practice, which then has no uniform system for handling such matters.  Not so with criminal jurisdiction, where the provincial courts — in which Justices exercise broad powers — fairly well follow English institutions.
• A Supreme Court of Judicature, to serve as the highest trial court of general civil and criminal jurisdiction in the province (general jurisdiction being understood to mean all the jurisdiction exercised by three distinct British trial courts, i.e., Kings Bench, Common Pleas, and Exchequer).  This Court enjoys power to establish rules and ordinances, and to regulate practice before it.  Originally established to sit only in New York City, the provincial Assembly soon changes the law so that, once each year, one of the Court’s Justices will ride circuit to hear cases around the province.  This is done to accommodate litigants outside the City, who otherwise must bring witnesses and even jurors sometimes great distances so that they can have their cases tried before Supreme Court.  When on circuit, a Justice is sometimes assisted by local Justices of the Peace.  In all cases, however, a Justice may only conduct trials.  Commencement of a lawsuit and filing of the pleadings therein still must be done in New York City; and, likewise, judgment in the case must be rendered in the City before the Supreme Court sitting there en banc.  Occasionally, a Supreme Court Justice is required to preside over a Special Court of Oyer and Terminer and General Jail Delivery — in New York City, Albany, and sometimes elsewhere — to try persons who have been arrested and jailed between regular Supreme Court sessions.  This Court of Oyer and Terminer should not be confused with the pre-existing Court of Oyer and Terminer, which had been established by the provincial Assembly in 1683.  This 1691 Court becomes the criminal branch of Supreme Court while the original Court (which was presided over by two Justices commissioned by the Governor to ride circuit twice a year to hear civil and criminal cases and appeals) is abolished.  To be sure, however, the Supreme Court, sitting en banc, does not hear many criminal cases.  Those are most often heard by the circuit judges, in the Sessions Courts, or by Justices of the Peace.
  Appeals from judgments of the Supreme Court are rare as the distances involved, and the related expense and delay, are prohibitive.  There is provision, however, for appeals to the Governor in cases involving more than £100; and to the King of England in cases involving more than £300.  There is no provision for appeal from Supreme Court in a criminal case, although occasionally, where exceptionally large fines are involved, appeal to the King is permitted.
  There are originally five Supreme Court Justices (a Chief Justice plus four Associates also known as puisne justices) all of whom are appointed by the Governor.  The first Chief Justice of the Supreme Court of Judicature is Joseph Dudley, a native of Roxbury, Massachusetts.  Ten years later, the number of Justices is reduced to three.  The Justices of the Supreme Court hold office at the King’s pleasure.
• A Court of Chancery consisting of the Governor and the Council (although the Governor could appoint a Chancellor to sit in his stead) to handle equity matters.  In practice, however, this Court seldom sits.  Instead, equity matters, along with other matters such as probate and intestate succession, generally are handled by other courts, including the Supreme Court of Judicature.
• A Court of Errors consisting of the Governor, the Council, and the principal judges to hear appeals in civil cases involving £100 or less.  Where a greater amount is in controversy, appeal must be taken to the King and his Privy Council.
  Beyond these statutory courts, there also is a Court of Admiralty — established by the Executive.  This court does not sit very often because admiralty jurisdiction also lies in the Supreme Court and the Mayor’s Courts (dating from the era of Dutch rule), and those courts generally hear such admiralty cases as arise.

This court structure incorporates many of the main features of the Dominion Act.  Most significantly, the structure ensures a significant degree of central control over the courts — by the appellate process it creates and through the broad jurisdiction of the Supreme Court.

The statute establishing this court structure is effective for only two years but is renewed several times by the colonial Assembly, expiring finally in 1698.

[53] L. 1691, c. 4 (found in vol. 1 of the Colonial Laws of New York).

The provincial Assembly passes an act regulating the probate of wills and providing for the administration of intestate estates.  The Assembly also directs that Supreme Court sit twice annually for New York and Orange Counties together, and once annually for all other counties.  Further, it provides that a single Supreme Court Justice should “goe the circuit”, i.e., hold court while being assisted by two or more of the local Justices of the Peace in the county where court is being held.

Originally, the Duke’s Laws (ratified in 1665) had vested jurisdiction over decedent’s estates in the Courts of Sessions and the Mayor’s Court.  Gradually, beginning during the tenure of Governor Nicolls (1664-1668), this jurisdiction was assumed by the Governor and, through his delegation (i.e., at his prerogative), by the Governor’s Secretary.  Over time, this practice is continued, and the delegation becomes formalized to the point where, under Governor Sloughter, it is settled, and the institution of a prerogative office is made official.  The Assembly’s 1692 enactment largely memorializes this practice, with the Governor’s delegate recognized as the Prerogative Court, except that, in more remote counties of the province, the Courts of Common Pleas can act to take proof of wills and transmit the record of their findings to the Prerogative Court.  Also, the Assembly’s enactment authorizes the designation of freeholders in towns to take charge of the estates of those dying intestate.  Ultimately, this class of officials takes the name “surrogate”, which title has survived to this day.

Introduction of circuit riding for the Supreme Court may have suggested a contemporary legislative intent to decentralize the Court.  It is unclear, however, whether, in so doing, the Assembly was striving to make the Supreme Court into a county institution or merely into a circuit bench.

The Circuit Court’s criminal jurisdiction is exercised through commissions conveying distinct powers to the affected judges.  An assize commission would give authority to the Circuit Judge to conduct trial; a gaol delivery commission would authorize the judge to deliver a defendant from jail for trial in a venue on the basis of indictments already found by a lower court of inferior jurisdiction; an oyer and terminer commission would require empanelment of a grand jury to return an indictment, which then could be tried.  In combination, these instruments confer upon the circuit-riding judge all necessary original jurisdiction over felonies and misdemeanors.

The first regular Court of Admiralty is established.  The Court includes a judge, registrar, and marshal — all holding office on commission from the Crown.[54]

[54] Scott, Henry, The Courts of New York State, pp 353-356.

The original statute fixing the colonial court structure expires but, in the following year, the Assembly passes an act to revive it.  Governor Bellamont, however, declines to approve this act.

These events play out during an ongoing power struggle between the Assembly and the Governor.  Ostensibly, the failure to continue statutory authorization for the courts leaves the province without a lawful court system.  But the Governor believes that, inasmuch as all of his predecessor’s commissions had included a general provision authorizing them to erect and establish courts, he, too, enjoys such authority.  And, so, in May 1699, with this legal understanding and driven generally by the view that courts and their operations fall squarely within the King’s (and his delegates’) prerogative, and with his Council’s concurrence, the Governor by ordinance directs that all the courts previously established and continued until 1698 should be re-established.  For many years thereafter, the provincial judiciary continues to exist by such executive fiat.  The Governor’s ordinance also clarifies that Supreme Court should remain a centralized institution, situated in New York City; and that when single Justices sit outside the City, they are riding circuit.

Following its acts of 1691 and 1692, and the several acts of the later 1690’s continuing the 1691 court structure, the provincial Assembly is never again able to effect major revisions of New York’s court structures.  It is not for want of trying, however.  Throughout the 18th century, many efforts are made to change the courts but, in the main, they are rebuffed by the Governor and the Crown; and the Assembly is only able to affect operations in the lowest courts.  Even there, the changes it makes are only modest.  Any important changes made to the larger court structure and operations invariably are the result of ordinances issued by the Governor and his Council.

English authorities order creation of a Court of Chancery, to be held monthly and presided over by the Governor and his Council.  While such a court had been established by the provincial Assembly in 1691, it never sat.  In 1701, however, there begins an extended period of debate and controversy in New York concerning Chancery’s use.  The English government very much wants such a court to exercise jurisdiction over the Crown’s many claims for provincial revenue that are in arrears.  At the same time, the public resists such claims and efforts to facilitate their collection.  Indeed, the provincial Assembly quickly passes resolutions declaring the Court to be illegal.  Over the ensuing decades, there will be a continuing tug of war on this issue.[55]

[55] See generally, NYS Court of Chancery, Historical Society of the New York Courts.

The Court of Chancery is suspended by the Governor’s Council pending study and report by two Supreme Court Justices.  It is revived two years later (1704) through exercise of the gubernatorial prerogative power.[56]

[56] Nelson, William E., Legal Turmoil in a Factious Colony: New York, 1664-1776, 38 Hofstra Law Rev., p. 25.

The number of annual terms of the Supreme Court is increased to four.

Local opposition to the Court of Chancery is renewed.  The Assembly position is that, unless it has consented thereto, executive effort to create such a Court is ultra vires.

Governor Robert Hunter assumes the role of Chancellor.  This action rekindles public disagreement over the King’s assertion of a prerogative to establish courts for the province.  It leads to an Assembly resolution condemning the Governor’s action: “Resolved, That the erecting of a Court of Chancery without consent in general assembly is contrary to law, without precedent, and of dangerous consequence to the liberty and property of the subjects [and] That the establishing of fees, without consent in general assembly is contrary to law.”  It is suggested that one of the root reasons for the strong provincial opposition to Chancery Court lies in the fact that many large landowners in New York — beneficiaries of significant land grants from Governors (who had incentive to sell lands, often as frauds on the crown, to boost their compensation through the fees they could collect upon these transactions) — are concerned that the legitimacy of their holdings could later be challenged in that Court.

After deliberation of the issue in the Governor’s Council and consultation with London, the Governor continues to sit as Chancellor.  The controversy remains, however, and persists for many years thereafter.

The Assembly passes a resolution declaring Chancery Court to be illegal.  This action is likely inspired by the Assembly Speaker, Adolph Phillipse, who recently had lost a suit in that Court.  Following passage of this resolution, Governor William Burnett, who then served as the Chancellor and who in that capacity had signed the decree against Phillipse, dissolves the Assembly.  The next year, in response to these events, the Governor’s Council undertakes to promote reforms of many of the Chancery Court’s abuses — reforms that are adopted.

The Assembly enacts the Montgomerie Charter for New York City.  Under this charter, several changes are made in the City’s court structures.  They include:

1. Addition of authority for local Justices of the Peace to exercise jurisdiction over felonies at large, and
2. designation of the Mayor, Deputy Mayor, Recorder, and Aldermen as ex officio Justices of the Peace.

This basic structure will define municipal administration for over a century.[57]

[57] Ellis, David M., et al, A Short History of New York State, p. 46.

The trial of John Peter Zenger is held in New York City.  Zenger is a printer who publishes a weekly journal that harshly criticizes New York’s incumbent governor, William Cosby.  While Zenger does not actually write the offending material — it is the work of others — he is charged by the authorities with seditious libel.  At first, it appears to be an open and shut case, the truth of the offending material being irrelevant under prevailing law (i.e., English common law, which seeks to punish not just false accusations against the government but simply any accusation against the government that is intended to hold it in “hatred or contempt” or to promote discontent or hostility among British subjects or to incite efforts to change Church or state law other than by lawful means).  Zenger’s lawyer, Andrew Hamilton, however, convinces the jury that the dispositive issue should be whether, in fact, the allegedly libelous material is true.  Thereupon, Zenger is promptly acquitted and several of the cornerstone principles of American law — freedoms of speech and of the press — are thereby inspired.

By a further statute enacted by the provincial Assembly, Justices of the Peace are given jurisdiction over actions involving damages of 40 shillings or less.

A Supreme Court Justice, Daniel Horsmanden, is commissioned to prepare a revision of laws in force affecting the colonial system of justice. Also, by colonial statute, the Supreme Court is given nisi prius jurisdiction ex officio.

The Horsemanden revision of the laws is never completed.  Some blame this on the fact that Justice Horsmanden is quite old when he undertakes his commission; and it is suggested that later efforts to impose a mandatory retirement age for judges are prompted by his example.

The nisi prius system, which originated in England, had been established in the colony toward the end of the 17th century.  It allows for the trial of a case in the venue where the parties and witnesses reside (and jurors can be drawn), while leaving jurisdiction over preliminary proceedings and final judgment in the hands of a New York City-situated Supreme Court.  This system saves the expense and inconvenience in the trial of matters arising at a distance from the City while assuring that the more technically and, potentially, politically challenging initial and final proceedings in such matters remain subject to the oversight of judges who are better-trained and, coincidentally, apt to be more sensitive to the Crown’s concerns.  Historical evidence suggests that, despite its early establishment, the nisi prius practice actually takes many years to evolve, with greater reliance upon it depending upon population growth in the counties outside New York City and greater use of the information procedure in prosecuting regional crime.

In the early 1760s, there is a serious debate in New York on the question whether its Supreme Court Justices should be appointed by the Royal Governor to serve at his pleasure or to serve during good behavior (as is then the case with English judges).[58]  In the wake of this debate, the provincial legislature enacts a statute providing that Justices should hold their commissions during good behavior.  Governor Colden refuses to assent, however.  The incumbent Justices then petition the Governor in Council to renew their commissions during good behavior.  The Governor postpones consideration of their petition pending instruction from England.  The Justices threaten not to act unless their wishes are granted.  The issue of tenure then becomes linked to judicial salaries.  Ultimately, several Justices agreed to accept commissions for service at the Governor’s pleasure.

[58] Ellis, David M., et al, A Short History of New York State, pp 45-46.

The case of Forsey v. Cunningham — a civil suit for assault in the Supreme Court of Judicature — results in a jury verdict and judgment for the plaintiff.  The losing defendant then attempts to overturn the judgment by bypassing a writ of error in the courts and appealing directly to the Acting Governor.  The provincial council, however, rules that any appeal from a jury verdict must proceed through the courts.  This ruling is seconded by the English Attorney General and Solicitor General.  The decision in Forsey is regarded as pivotal in upholding the right to trial by jury and in establishing that, in New York, the law was not what the Governor or even the Assembly by statute commanded; rather it was what local people, either jurors or trial judges beholden to local constituencies, or in the case of Supreme Court justices, to the bar, declared the law to be.[59]

[59] Nelson, William E., Legal Turmoil in a Factious Colony: New York, 1664-1776, 38 Hofstra Law Rev., pp 37-39.

Lord Mansfield writes the decision in Somerset v. Stewart, a case understood by many to have ended slavery in England.  Somerset holds that, in order for there to be slavery in England, it must be authorized by positive law.  At the time of the decision, slavery had never been authorized by statute within England and Wales; nor supported in England by the common law.

With the coming of the Revolution, the provincial courts fall into disorder.  Many are presided over by loyalists to the Crown; and the American patriots often openly ignore or oppose their efforts to execute the duties of office.  In September, as the British take New York City, the British commander, General William Howe, shuts down civil courts in the City and elsewhere within the British lines.

In response to urging by the Continental Congress that, in the wake of independence, each colony establish its own form of government, New York’s first Constitutional Convention opens in New York City.

On June 30, 1776, anticipating an attack by the British, New York’s fourth provincial congress adjourns to White Plains, where, in the courthouse on July 9, it ratifies the recently issued Declaration of Independence.  This congress includes 104 delegates from the State’s 14 counties and sits as the State’s first Constitutional Convention (called the “Council of Representatives”).  Its task is to produce a State Constitution for the new state of New York.

New York’s first Constitution is adopted in Kingston, to be effective April 20, 1777.  It is written under the most trying circumstances, i.e., while working on the Constitution, the members of the Convention must scramble up the Hudson River (from White Plains to Harlem, then to King’s Bridge, Philipse Manor, Fishkill, Poughkeepsie, and Kingston) to elude the invading British army.  Given these circumstances, it is not possible for the people of the new state to vote on their new constitution — so the Convention merely calls it into being.

The new Constitution, which is primarily the work of John Jay, George Clinton, Alexander Hamilton, Robert Livingston, and Gouverneur Morris, includes no separate article devoted to the Judiciary, and just a few provisions regulating the courts — in effect carrying over the provincial judicial system, which, at the time the Constitution is adopted, consists of a Court of Chancery, a Supreme Court, a Court of Common Pleas, and Justice Courts.[60]  The few provisions of the new Constitution that affect the courts address:

• Judicial selection, providing that all the primary judicial officers (i.e., Supreme Court Justices, the Chancellor, and certain County Judges) shall be selected by a Council of Appointment (made up of the Governor and four Senators selected by the Assembly).
• Terms of judicial office and mandatory retirement, providing that judges will hold office during good behavior subject to mandatory retirement at age 60.
• Impeachment and the Court for the Trial of Impeachments and the Correction of Errors, establishing a single forum to (1) act as an impeachment court, and (2) serve as New York’s appellate forum of last resort.
  In serving as an impeachment court, this Court will consist of the President of the Senate (i.e., the Lieutenant Governor) as presiding officer, all State Senators, the Chancellor, and the Supreme Court Justices (or a major part of them).  Impeachment and conviction by this Court will be the sole means by which an errant judge may be removed from office.
  In serving as an appellate court, the Court for the Trial of Impeachments and the Correction of Errors is modeled after the English House of Lords.  While the Chancellor and the Supreme Court Justices are to be active members of the Court, the constitutional framers carefully exclude them from playing any role in the decision of appeals before the Court where those appeals are from their decisions (although the constitutional text makes plain that, even under those circumstances, the Justices may participate in the deliberative process — at least to the extent of explaining the reasons for their judgments).
• Council of Revision, providing that the Governor, Chancellor, and Supreme Court Justices shall sit together as a Council of Revision to determine the constitutionality of legislative enactments before they can become law.  Each bill that passes the Senate and Assembly must be presented to this Council for its approval; and should the Council find the bill objectionable, it may return the bill to the Legislature within ten days in which event it will not become law unless it is re-passed by the Legislature with a two-thirds supermajority vote.  With this Council of Revision in place, there is little reason for the Court for the Trial of Impeachments and the Correction of Errors to sit to determine the constitutionality of laws.  Indeed, between 1777 and 1847, the Court declares only three statutes unconstitutional.  Another reason that the Court for the Trial of Impeachments and the Correction of Errors declares so few statutes unconstitutional lies in the obvious fact that the Court is dominated by members of the Senate who likely would be disinclined to overturn statutes that they themselves already had approved.[61]
• Judges holding other offices, barring Supreme Court Justices and the Chancellor from holding other offices except that of delegate to the General Congress; and, likewise, certain County Judges from holding other offices except those of Senator and delegate to the General Congress.
• Continuation of the common law and colonial legislative enactments in effect on April 19, 1775 (the date on which the battle of Concord was fought), and the acts of the subsequent colonial and state legislatures in force on April 10, 1777 (ten days before adoption of New York’s Constitution), not inconsistent with the new Constitution.  By expressly adopting the common law of England, however, the Constitution incorporates the English Bill of Rights of 1689 into the law of New York.
• Bar admission, providing for court regulation and supervision of the admission of attorneys to the Bar.
  In fact, no rules regulating bar admission are actually adopted by the courts until 1797, when Supreme Court adopts a rule requiring that, to be admitted to the bar, one must serve a regular clerkship of seven years’ duration with a practicing attorney of the court to which a person seeks admission (although four years of classical studies undertaken after a person attains age 14 could be substituted).  No examination is needed for admission.

The State’s first Constitution contains no Bill of Rights.  Only the right to trial by jury is guaranteed.

[60] Article XXXV of the 1777 Constitution provides, in relevant part:  “That such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the nineteenth day of April in the year of our Lord, one thousand seven hundred and seventy-five, shall be and continue the law of this state, subject to such alterations and provisions as the legislature of this state shall, from time to time, make concerning the same . . .” (emphasis added)

Inasmuch as the 1777 Constitution included no provision specifically addressing court structure (e.g., nothing enabling a Supreme Court), it may be concluded that its framers intended that the Supreme Court of Judicature, which had been created in 1691 by an early act of New York’s colonial legislature, simply be continued as part of the law of the new State.

[61] Lincoln, Charles Z., Constitutional History of New York, Vol. 1, p. 162.

John Jay, of New York City, is appointed as the first Chief Justice of New York State’s Supreme Court.

Robert Livingston, of Clermont, New York, is appointed as New York State’s first Chancellor.

New York becomes the second state to approve the Articles of Confederation.

Richard Morris, of Morrisania (an estate later annexed to New York City as part of the Bronx), succeeds John Jay as Chief Justice of New York’s Supreme Court.

United States and British representatives sign the Treaty of Paris ending the Revolutionary War and recognizing American independence.

The Legislature regulates the Court for the Correction of Errors.

A Bill of Rights is enacted as a statute in New York.  It includes a variety of protections including:

1. Due process,
2. Prohibition of excessive bail/fines and cruel or unusual punishment,
3. Free elections, and
4. Freedom of speech and debate in the Legislature.

No formal Bill of Rights had been included in the State Constitution adopted in 1777 although there were several clauses guaranteeing basic rights including male suffrage based on residency, a right to counsel in both criminal and civil trials, freedom of religion, abolition of religious establishments, and the guarantee of due process.

The Federal Constitution is adopted on September 17, 1787.

In Poughkeepsie, New Yorkers ratify the Federal Constitution.  New York is the eleventh state to do so.

Robert Yates, an Associate Justice of the State Supreme Court from Albany, succeeds Richard Morris as Chief Justice.           

The Bill of Rights is ratified as a series of amendments to the United States Constitution.

Albany becomes the permanent capital of New York State.  Prior to this time, the State Legislature had met in Kingston and New York City.

First Rules regulating admission to the New York bar are promulgated by the Supreme Court.

The Legislature establishes a Court of Oyer and Terminer for New York City and New York County.  Thereafter, the jurisdiction of this Court is prescribed by the Legislature, either in general statutes or by special acts (or by provisions in acts amending the City Charter).  The organization of these Courts is to be determined by the Legislature.

In New York City prior to Independence, criminal jurisdiction had been exercised by the Mayor, Recorder, and the Aldermen, who were “justices assigned of Oyer and Terminer and of the jail delivery of all and every jail” in the City.  Beginning in the late 18th century, however, this court — which exercises full criminal jurisdiction — consists of a Supreme Court Justice and two or more Judges of the Court of Common Pleas.

Albanian John T. Lansing, an Associate Justice of the State Supreme Court, succeeds Robert Yates as Chief Justice of that Court.

New York begins a process of emancipating slaves living within the State.  The Legislature enacts a statute that frees enslaved children born after July 1, 1799, but indentures them until they reach age 28, for males, and age 25, for females.

By a later statute, enacted in 1817, full emancipation of all slaves is directed, effective July 4, 1827.

John T. Lansing, the Chief Justice of New York’s Supreme Court, succeeds Robert Livingston as Chancellor of the State.

The Legislature enacts a statute convening the State’s second Constitutional Convention.  In so doing, the Legislature acts on its own authority, there being no provision in the 1777 State Constitution fixing a procedure for its revision.

A second Constitutional Convention is held in New York.  This Convention has a very limited agenda:  i.e., to increase the size of the Legislature and to amend the existing Constitution to clarify interpretation of Article 23, which then provided for a Council of Appointment.  Clarification of Article 23 is necessary to resolve a dispute between the Governor, who believes he enjoys an exclusive right to nominate State, county, and municipal officials, and some members of the Council, who believe they concurrently enjoy a right to make such nominations.[62]

[62] Lincoln, Charles Z., Constitutional History of New York, Vol. 1, pp 596-603.

The Supreme Court adopts a rule providing that every person who has pursued judicial studies for four years within the State under the direction of a professor or an attorney, or who has been admitted to the Bar in any other state and practiced law there for at least four years, shall be admitted to the New York Bar.  There is no provision for a state bar examination.

The Erie Canal Act directs the State Canal Commissioners to petition the Supreme Court for appointment of disinterested appraisers to assess damages to private land holders from canal construction.  The Commissioners pay the damages thereby assessed and fee title then vests with the people of the State.  This is the first general statute providing for the hearing and determination of private claims against the State.

Following the precedent set in 1801, the Legislature enacts a statute calling for submission to the electorate of the question of holding a Constitutional Convention.  The People vote overwhelmingly in the affirmative and the Convention takes place between August and November.  It produces a new Constitution, which thereafter is submitted to the State’s voters.

The new Constitution produced by the 1821 Constitutional Convention is approved by the voters by a two-to-one margin.  It is the first time in New York that the State Constitution has been submitted to the voters at a popular referendum.

The new Constitution, which takes effect on December 31st, eliminates the Councils of Appointment and of Revision, which, over time, had become quite unpopular, as well as the Judiciary’s role in vetoing legislation.  It also adds a comparatively short article devoted to the Judiciary (Article V), which makes a series of changes in the State’s judicial system.  This is done because, for the first time, Judiciary-related issues are a major focus in the drafting of New York’s State Constitution.  While some of this attention is for the purpose of restructuring judicial organization in the interest of improving its functioning, historians have suggested that most of the attention was driven by partisan interests and a demand for democratization.[63]

The specific constitutional provisions affecting the courts address:

• Ouster of incumbent Supreme Court Justices.  A major aim of the Convention is prematurely to end the tenure of then incumbent Supreme Court Justices.  To this end, there is a provision calling for early expiration of all civil offices (including those of judges).[64]
• Reduction in the size of the judicial representation on the Court for the Trial of Impeachments and the Correction of Errors, corresponding to a simultaneous reduction in the number of Supreme Court Justices to three.
• Substantive and procedural changes in the impeachment process, including a change in the impeachment standard (“The assembly shall have the power of impeaching all civil officers of this state for mal and corrupt conduct in office, and for high crimes and misdemeanors”); and (ii) reduction of the requirement for a two-thirds vote in the Assembly to support articles of impeachment to a simple majority.[65]
• County Courts.  For the first time, reference is made to the County Courts in the State Constitution.[66]  These Courts are a continuation of the Courts of Common Pleas.  The Constitution does not set forth their jurisdiction.  That is fixed by statute although, by later Supreme Court decision, the County Court is held to be a court of record with general jurisdiction of several actions at common law equal to that possessed by the Common Pleas Court in England).
• Selection of judges.  All judicial officers shall be appointed by the Governor, with the Senate’s consent, except for Justices of the Peace and certain special Justices in New York City.[67]  Justices of the Peace shall be appointed for four-year terms through a collaborative effort of county boards of supervisors and local County Judges,[68] while special New York City Justices shall be appointed by the City’s Common Council.
• Judicial terms of office, mandatory judicial retirement, limits on judicial office, and removal of certain judges from office.  Supreme Court Justices, Circuit Judges, and the Chancellor are to serve during good behavior subject to mandatory retirement at age 60.[69]  County Judges and City Recorders are to serve for five-year terms (previously, County Judges were appointed and served during good behavior).[70]  All other judicial officers are to hold office at the pleasure of their respective appointing authorities.  This introduction of a fixed term of office is an experiment of sorts in finding a means to ensure judicial accountability.
  For the first time, the Chancellor and the Supreme Court Justices are barred from holding other offices.[71]  Also, for the first time, special provision is included in the Constitution for the removal of certain judges (i.e., County Court Judges and City Recorders may be removed by the Senate on recommendation of the Governor).[72] 
  After adoption of the 1822 Constitution,[73] there are four methods by which judges can be removed from office:  (1) impeachment on charges brought in the Assembly, to be tried by a legislative tribunal consisting of the Senate and judges of the State’s highest court; (2) removal of the Chancellor, Supreme Court Justices, and Circuit Judges, by concurrent resolution of both houses of the Legislature; (3) removal of County Judges and Masters and Examiners in Chancery, by the Senate on recommendation of the Governor; and (4) removal for cause of Justices of the Peace, by the County Court.  The 1822 Constitution also revises the impeachment provision so that a public officer may be impeached “for mal and corrupt conduct in office, and for high crimes and misdemeanors.”[74]
• Constitutional memorialization of the Circuit Court system.  Originally, the Supreme Court had confined its attentions to downstate, where most of the State’s population lay.  The small number of Supreme Court Justices was generally adequate to meet the prevailing caseload demands.  As New York’s population grew, however, and as the State spread out with new counties and local governments, there developed a need for a greater judicial presence statewide.  Indeed, at the time of the 1821 Constitutional Convention, there are only five Supreme Court Justices; and they are expected to do the work required of a court of general jurisdiction in all the State’s counties, then numbering 52.  In the late 18th and early 19th centuries, however, such an expectation is unrealistic, and the Legislature finds it necessary to turn to a variety of expedients, including increasing the jurisdiction of the Courts of Common Pleas (County Courts), appointing Supreme Court Commissioners, and vesting City Mayors and Recorders with Supreme Court functions.  In the end, these expedients prove to be inadequate and, so, the 1821 constitutional framers give the Legislature authority to divide the State into between four and eight circuits, each with its own judicial allocation.[75]  In practice, the Circuit Judges thereby established are considered by the Bar to be essentially the same as Supreme Court Justices.  They are vested with the powers of Supreme Court Justices in chambers and with jurisdiction to try cases brought in Supreme Court.  This leads to a dual system whereby Circuit Judges try Supreme Court cases before juries and determine factual issues, while Supreme Court Justices exercise jurisdiction over law issues and facts in non-jury matters.
• Chancery.  The 1822 Constitution’s establishment of the Circuit Courts also is intended to relieve the caseload and reduce delays in Chancery.  To this end, the Constitution permits the Legislature to vest equity powers in the Circuit Courts, as well as in other courts.[76]  The Constitution also confers upon the Governor the power to appoint masters in Chancery.[77]
• Filling of judicial vacancies.  The 1822 Constitution provides that “[t]he chancellor and justices of the supreme court shall hold their offices during good behavior, or until they shall attain the age of sixty years.”  This continues a provision made in the first State Constitution.  There is, however, no specific provision made in the 1822 Constitution for the filling of such vacancies on the Supreme Court as might thereafter occur.  This may have been because the constitutional framers believed that such was unnecessary because of the constitutional provision already conferring upon the Governor the right to appoint, with Senate consent, nearly all judicial officers.
• Courts of Oyer and Terminer.  The 1822 Constitution continues the Courts of Oyer and Terminer but makes no specific provision for their constitution or organization.[78]  In practice, they are criminal courts that are presided over by Circuit Judges outside New York City.
• Bar admission.  Unlike the 1777 Constitution, the 1822 Constitution makes no mention of the courts’ responsibility for overseeing admission to the Bar.

Although the 1822 Constitution devotes considerably more attention to the courts than did its predecessor, it does not do much more than:  (1) change the number of Supreme Court Justices; (2) eliminate Justices already in office at the time of the Constitution’s adoption; (3) limit the tenure of local judges to a fixed term; and (4) bar higher level judges from holding other office.  Accordingly, commentators have described the Constitution of 1822 as having been built not so much in anticipation of further State expansion and growth in court needs as to correct past systemic defects.

The new Constitution adopts — for the first time in New York — a separate Bill of Rights.[79] Also, it includes provision for amending the Constitution upon legislative initiative.[80]  Finally, it makes many thousands of State offices elective.

[63] See generally Lincoln, Charles Z., Constitutional History of New York, Vol. 1, pp 674-690.

[64] NY Const. (1822), Art. IX, §1.

[65] Ibid., Art. V, §2.

[66] Ibid., Art. V, §6.

[67] Ibid., Art. IV, §7.

[68] Ibid., Art. IV, §14.

[69] Ibid., Art. V, §3.

[70] Ibid., Art. V, §6.

[71] Ibid., Art. V, §7.

[72] Ibid., Art. V, §6.

[73] Some commentators refer to this Constitution as the 1821 Constitution, recognizing that the Constitutional Convention that produced it sat in 1821.  As the voters’ adoption of the new Constitution proposed by the Convention did not actually take place until 1822, with its effective date occurring in that same year, it will be referred to throughout this document as the 1822 Constitution.

[74] NY Const. (1822), Art. V, §2.

[75] Ibid., Art. V, §5.

[76] Ibid., Art. V, §6.

[77] Ibid., Art. IV, §12.

[78] Ibid., Art. V, §5.

[79] Ibid., Art. VII.

[80] NY Const. (1822), Art. VIII, §1.

The Legislature enacts statutes implementing provisions of the new Constitution that affect the Judiciary.  These statutes set forth important detail that had not been included in the Constitution, including specification of the new judicial circuits, rules for the holding of terms of court, provision for the jurisdiction of some courts, and rules governing admission to the State Bar.

New York enacts a statute establishing the concept of juvenile delinquency.[81]  This statute provides that “the managers of the [Society for the Reformation of Juvenile Delinquents] . . . shall receive and take in the house of refuge, established by them in the City of New York, all such children as shall be convicted of criminal offenses, in any city or county of this state, and as may in the judgment of the court, before whom any such offender shall be tried, be deemed proper objects . . .”

[81] L. 1824, c. 126.

The Constitution is amended to change the method of selection for Justices of the Peace from appointment to popular election.  This change had been recommended by Governor DeWitt Clinton in his 1825 annual message to the Legislature.[82]

[82] Lincoln, Charles Z., Constitutional History of New York, Vol. 2, pp 5-6.

New York introduces universal white male suffrage (the 1822 Constitution had authorized suffrage for white, tax-paying male citizens and for Black males having property of at least $250 in value).

In his 1828 annual message to the Legislature, Governor DeWitt Clinton identifies basic flaws in the judicial system established by the 1822 Constitution.  In particular, he points to the inadequacy of the Circuit Court system, writing that “[t]he fatal error consisted in separating the judges who try the fact, from the tribunals who pronounce the law; or, in other words, creating circuit courts as distinct and independent forums, and not as emanations from Supreme Court.”

Clinton is the first in a series of New York Governors to call for significant reform of the Judiciary’s structure; and to take the view that such reform may be beyond the power of the Legislature to effectuate in the absence of a constitutional amendment.  He describes the inadequacies in the 1822 Constitution as “radical defects.”  In no small measure, this call and those of his successors are made in reaction to a rapid growth in the State’s population and expansion of that population across the State.[83]  This expansion sees Albany, Oneida, Onondaga, Monroe, and Erie Counties become among the largest of the population centers outside New York City; and, with their growth, the State’s Chancery and Circuit Court systems soon become overwhelmed.

Also prompting these gubernatorial calls for court reform are the evident limitations of the Court for the Trial of Impeachments and the Correction of Errors.  These include:

• The poor quality of its decisions.  While some Senators are able lawyers, that is not always the case.  The result is that this Court, which serves as the State’s judicial forum of last resort, is viewed as weak judicially.
• Structural unsoundness.  The Court’s large size, its method of operation (i.e., there were no real deliberations; rarely did the Court’s members reach a unanimous decision; the design of the Court and its membership were not in keeping with the separation of powers), and its essentially legislative character are problematic.  While the Court has occasionally been likened to the British House of Lords, in practice, it really is not much like it at all.  An important distinction:  the House of Lords delegates its judicial function to a special committee of its members who are professional judges (in other words, the whole body does not participate in the decision of the cases before it).  By contrast, all members of the Court for the Trial of Impeachments and the Correction of Errors, whatever their credentials and competence, participate in decisions of the cases coming before it.
• Slow decision-making.  There is much public and press criticism of the Court’s delays in disposing of the cases before it.

The calls for court reform go largely unheeded, however, until several unrelated political movements drive the Legislature, in 1845, to pass an act submitting a proposal for a Constitutional Convention to the voters.  Among these:  an anti-slavery movement fomented by the abolitionist wings of the State’s two controlling political parties, the Democrats and the Whigs.  The radical side of the parties on this issue tends to favor a more democratic way of selecting judges, i.e., by election.  Another prevailing movement takes the form of agitation by farmers for the breakup of large estates still held by the successors to the huge tracts of land originally amassed by the Dutch Patroons.  These feudal practices are impractical in a modern state and are deeply resented by contemporary farmers who can only work and live on the land as tenants.  By the late 1830’s, this resentment will lead to violence.  As with the radical abolitionists in the anti-slavery movement, the anti-rent farmers especially favor an elective Judiciary that they believe would be less willing to enforce the hated leases.  Beyond these two movements, concern for the State’s fiscal plight, especially in the wake of the national bank panic of 1837, and broader misgivings about abuses of legislative power will ultimately tend to drive public sentiment in favor of a Constitutional Convention.  Indeed, similar sentiments nationally will simultaneously lead many other states to hold constitutional conventions and amend their constitutions throughout the late 1840s and 1850s.

[83] Galie, Peter J., Ordered Liberty:  A Constitutional History of New York, Fordham University Press, 1996, p. 98.

The Court of the Exchequer ceases to exist.

Governor William Marcy, in his annual message to the Legislature, calls for enlargement of the judicial system — to meet case backlogs that have accumulated and to prevent future delays in the delivery of judicial decisions.  At the ensuing session of the Legislature, an amendment to the Constitution calling for two additional Supreme Court Justices is proposed.

In his 1835 annual message, Governor Marcy renews his call for judicial reform. Constitutional amendments are introduced — again for enlargement of the Supreme Court and, also, for establishment of a Superior Court of Common Pleas, with jurisdiction to be concurrent with that of Supreme Court.

Chief Justice John Savage of New York’s Supreme Court decides Griffin v. Potter (14 Wend. 209 (1835)), upholding the State’s emancipation of the slaves.  He writes:  “It is a fundamental principle of our government that all men are born free and equal; that is, entitled by nature to equal freedom and equal rights . . . When our government was first instituted, one portion of the population was in bondage to the other . . . It could be justified only by necessity.  It was at war with our principles; and the Legislature was of opinion that there was no necessity for its continuance.”

Governor Marcy continues his call for Judiciary reform.  This year, ongoing efforts to add more Supreme Court Justices are coupled with constitutional proposals to reorganize the Court of Chancery by providing for five chancellors and five chancery districts.

In response to the Governor’s repeated calls for Judiciary reform, the Legislature enacts a statute authorizing the Governor to appoint a three-person Judiciary commission “to digest and report to the next legislature an adequate judicial and equity system.”[84]

[84] L. 1837, c. 436.

Governor Marcy presents the Legislature with the report of the Judiciary commission authorized the preceding year.  This report proposes several constitutional amendments to reorganize the Judiciary, including a reduction by one-half in the number of senators on the Court for the Trial of Impeachments and the Correction of Errors; provision for five chancellors and five chancery districts; addition of two new Supreme Court Justices; a grant of legislative authority to further increase the number of Chancellors and Supreme Court Justices; continuation of the Circuit Courts subject to legislative authority to abolish them; a grouping of counties in Common Pleas districts with a presiding judge for each district to be appointed by the Governor; and provision for appointment of special commissions to dispose of certain business before the Supreme Court and the Court of Chancery, respectively.  The report does not produce a specific constitutional proposal for the Legislature at its 1838 session, but an amendment to the Judiciary Article is offered during that session calling for continuation of the Court for the Trial of Impeachments and Correction of Errors; reorganization of the Court of Chancery and the Supreme Court by appointment of not more than six Chancellors and six assistant Associate Justices; creation of a Supreme Court of Common Pleas with a Chief Justice and four Associate Justices; authorization for Supreme Court Justices and Justices of the Supreme Court of Common Pleas to hold trial terms; and abolition of the office of Circuit Judge.

New Governor William Seward refers to the need for judicial reform in his first annual message to the Legislature.  His recommendations: 

• Abolition of the office of Circuit Judge;
• Increase in the number of Supreme Court Justices;
• Authorization for Supreme Court to try both issues of law and equity;
• Creation of a Superior Court of Common Pleas with powers concurrent with those of Supreme Court; and
• Reorganization of the Chancery Court.

Governor Seward renews his call for Judiciary reform, and constitutional amendments are submitted to the Legislature.  These amendments include a proposal for the popular election of County Judges and Masters and Examiners in Chancery.

Legislation is passed increasing the jurisdiction of the Justice Courts to cases involving not more than $100.

Governor Seward continues his call for Judiciary reform in his annual message to the Legislature.  Thereupon, the Legislature gives first passage to constitutional amendments that would:

• Continue the Court for the Trial of Impeachments and Correction of Errors;
• Reorganize the Court of Chancery (to provide for a Chancellor and between two and four assistant Chancellors);
• Add two additional Supreme Court Justices;
• Authorize creation of two additional courts of law with Supreme Court jurisdiction;
• Provide for general and special terms of court and, also, for a court of review, to be composed of judges of other courts, to hear appeals that otherwise might be taken to the Court for the Trial of Impeachments and the Correction of Errors; and
• Abolish the offices of Circuit Judge and Vice Chancellor.

Although the Governor heralds first passage of constitutional reform proposals in the preceding legislative session and encourages their second passage in 1842, the amendments nonetheless fail to pass.

William C. Bouck is now Governor.  In his annual message, he echoes his predecessors’ calls for judicial reform, observing that the Constitution has failed to make “adequate provision for the expansion of the judicial system with the increased population and business of the state.”  No action is taken on judicial reform by the Legislature during its 1843 session, however.

Judiciary reform is again a major topic of Governor Bouck’s annual message to the Legislature.  Several constitutional amendments affecting the courts are formally submitted to the Legislature.  Two are given first passage — one providing for three Associate Chancellors and one adding two new Supreme Court Justices.

24 counties petition the Legislature for submission of a question to the voters regarding the calling of a Constitutional Convention.

Silas Wright is now Governor.  His call for second passage of the two constitutional amendments approved by the 1844 Legislature goes unheeded, but a statute is passed submitting to the people the question whether a Constitutional Convention should be held.  In November, this question is overwhelmingly approved.

The Constitution is amended to provide that, in the case of removal of a judicial officer by the Legislature or by the Senate on the Governor’s recommendation, the affected officer must first receive notice of the charges against him and an opportunity to be heard.

New York holds a Constitutional Convention in the summer and early fall.  This Convention drafts a new Constitution, which the voters then approve at the November general election.  This new Constitution, New York’s third, will take effect on January 1, 1847.  Among its most significant provisions is one requiring that, periodically (i.e., every 20 years or sooner if the Legislature so provides), the voters be asked whether there shall be a Constitutional Convention.

This new Constitution includes a comprehensive, detailed Judiciary Article.  The specific provisions of this Article have five main ends:

• Establishment of the Court of Appeals.[85]  For years, there had been much dissatisfaction with reliance upon the Court for the Trial of Impeachments and for the Correction of Errors as the State’s chief appellate forum.  Among the complaints:  (1) when a statute’s constitutionality is at issue in a case, it seems inappropriate for that case to be reviewed by the same senators who had approved the statute in the first place; and (2) the Court — dominated by members of the Senate — is a model of inefficiency.  Since the Court’s establishment, the experience had been that more opinion writing was drifting away from the professional judges among its membership to Senators who, often, were non-lawyers.  Further, the Court never meets as a collegial body; each of its members on his own separately examines a case before the body and writes an opinion if he wishes to — with the Court coming together solely to vote.  This has proven to be a very unwieldy process.[86]
  Recognizing these complaints, the new Constitution does away with the appellate review function of the Court for the Trial of Impeachments and for the Correction of Errors, transferring that function, along with the Court’s existing appellate backlog, to a new court:  the Court of Appeals.  This new Court consists of eight Judges — four selected by the voters statewide for eight-year terms plus a rotating corps of four Supreme Court Justices (the four having the shortest time remaining in office) serving annual terms.  This arrangement reflects a compromise between members of the Constitutional Convention who want Court of Appeals Judges to have previous judicial trial court experience and members who want an elective system for selecting Court of Appeals Judges.
  Also, the new Constitution empowers the Legislature to prescribe a process for selecting the Chief Judge of the Court.
• Trial court restructuring generally.  The new Constitution provides the first major reorganization of the trial courts since New York acquired statehood.
  Under this reorganization, the Circuit Court and the Court of Chancery are abolished, and the offices of Circuit Court Judge and Chancellor are merged into the Supreme Court.  With the State’s population having doubled over the past 25 years, many at the Constitutional Convention felt that, in anticipation of a continuing rapid growth in court caseloads in the years ahead, the separation between the fact-finding and law-deciding roles heretofore discharged by Circuit Court and Supreme Court, respectively, should be abandoned.  Likewise, it was felt that law and equity should be merged — hence, abolition of the Chancery Court and transfer of its functions to the Supreme Court.[87]
  This last change was not without controversy.  The merger of law and equity reflects a new idea and, even though the delay and expense of Chancery are obvious to all, there are many in the Bar who, long accustomed to the lodging of law and equity in different courts, feel that mingling the two would be unwise.[88]
  Also eliminated are County Courts of Common Pleas and Courts of General Sessions (except in New York City) with replacement of them by County Courts (in every county except New York County), which are given limited civil jurisdiction (i.e., equity jurisdiction in special cases as authorized by the Legislature and authority over appeals from Justice Courts), jurisdiction over all felony cases, and the responsibilities of the office of Surrogate.[89]  Further, the practice of having a County Judge preside over criminal matters with two Justices of the Peace (“side justices”) in courts of sessions is given constitutional stature.[90]
  The new Constitution further divides the State into eight Judicial Districts (one including all of New York City with the other Districts to be structured along county lines and to be as equal in population as possible), each to be allocated four Supreme Court Justices — although the Legislature could increase that number of Justices in the New York City Judicial District subject to a cap.[91]
  Courts of Oyer and Terminer are continued but no specific constitutional provision is made for their institution or organization.[92]  Likewise, Justices of the Peace are continued,[93] and the Legislature is given power to establish an inferior court structure in cities.[94]
• Court Administration.  The Legislature, and not the Judiciary itself, is empowered to fix the times and places for holding terms of the Court of Appeals and the trial courts.[95]
• An elective Supreme Court.  The Supreme Court becomes an elective bench, with each Justice serving an eight-year term.[96]  Some have seen this change as reflecting the then-prevailing spirit of Jacksonian democracy, but there are other influences at work here.  Whatever those influences may have been, undeniably this change is in keeping with a nationwide trend toward elective state judiciaries.
  The division of Supreme Court into a Judicial District structure is significant not just because it effectively continues the essence of the Circuit Court structure that is otherwise eliminated but because it provides for district-wide popular election of Supreme Court Justices.  This is a compromise between those who object to electing Justices on a county-wide basis (they argue that, under such a system, it would be tough to maintain judicial independence) and those who object to electing Justices statewide (they argue that, under such a system, judicial elections would get lost on the ballot).
  Complementing establishment of an elective Supreme Court bench, the Constitution abolishes the offices of Supreme Court Justice existing as of the first Monday in July 1847.  This is done because, otherwise, these Justices would have continued to hold their appointive posts during good behavior, or until they reached age 60.[97]
• An intermediate appellate court. The new Constitution recognizes the General Terms of the Supreme Court set up in each of the State’s newly created Judicial Districts.[98] This is the forerunner of today’s Appellate Division.[99]

Beyond the foregoing, the new Constitution introduces several other important reforms in the structure of the State’s court system, including:

• Elimination of mandatory retirement for judges.  The new Constitution makes no provision for a mandatory judicial retirement age.  Under the 1822 Constitution, judges had been required to retire at age 60[100] and some have suggested that this mandatory retirement age is dropped because it is believed to be “inappropriate to a system of election for short terms” (i.e., terms of Supreme Court Justices are fixed at eight years under the new Constitution).
• The filling of judicial vacancies.  The new Constitution authorizes the Governor to fill judicial vacancies occurring mid-term in offices on the Court of Appeals and the Supreme Court.[101]  Such appointments are to last until the offices are filled at the next general election of judges; and those who are elected to fill the offices are to serve out the unexpired portions of the terms of their elected predecessors.
• Special County Judge and Surrogate; City Courts.  Provision is made for the election of local officers, or Special County Judges, to act as County Judges/Surrogates in cases of inability to act or vacancy in office.[102]  Also, the Legislature is authorized to create City Courts.[103]
• Terms of office for other judges and their election.  Provision is made for election of County Judges to four-year terms,[104] of Justices of the Peace to four-year terms,[105] and of City and Village judicial officers as provided by the Legislature.[106]
• Election of the Clerk of the Court of Appeals.  The new Constitution provides for the popular election of the Clerk of the Court of Appeals for a three-year term.[107]
• County Clerks.  The County Clerks become clerks of the Supreme Court.[108]
• Practice and procedure in the courts.  Under the new Constitution, the Legislature, for the first time, enjoys explicit authority to dictate procedure in the courts.[109]  In the past, such procedure had largely been the province of court rule –as had been the practice in England.  Complementing this change, the Constitution directs the Legislature to set up a special commission to study, revise, and reform court procedures.[110]  The members of this commission (Arphaxed Loomis, David Graham, and D. D. Field) ultimately produce the Field Code.
• Judicial compensation.  The new Constitution provides for the compensation of Court of Appeals Judges and Supreme Court Justices.  This appears to have been prompted by discomfort with prior practice wherein judges received fees for their services from the litigants in the cases before them.
• Removal of Judges.  The new Constitution deletes provision for the impeachment of public officers, including judges, for “formal and corrupt conduct in office, and for high crimes and misdemeanors”.[111]

[85] Const. (1846), Art. VI, §2.

[86] See generally, Lincoln, Charles Z., Constitutional History of New York, Vol. 2, pp 145-150.

[87] Const. (1846), Art. VI, §§3, 5, 10, 24; Art. XIV, §8; L. 1848, c. 379, §62.

[88] See generally, Lincoln, Charles Z., Constitutional History of New York, Vol. 2, p. 152.

[89] Const. (1846), Art. VI, §14.

[90] Ibid.

[91] Ibid., Art. VI, §4.

[92] Ibid., Art. VI, §6.

[93] Ibid., Art. VI, §17.

[94] Ibid.

[95] Ibid., Art. VI, §9.

[96] Ibid., Art. VI, §12.

[97] Ibid., Art. XIV, §8.

[98] Ibid., Art. VI, §6.

[99] Duely & Constantly Kept, 1991, p. 8.

[100] Const. (1822), Art. V, §3.

[101] Const. (1846), Art. VI, §13.

[102] Ibid., Art. VI, §15.

[103] Ibid., Art. VI, §14.

[104] Ibid., Art. VI, §14.

[105] Ibid., Art. VI, §17.

[106] Ibid., Art. VI, §18.

[107] Ibid., Art. VI, §19.

[108] Ibid.

[109] Ibid., Art. VI, §5.

[110] Ibid., Art. VI, §24; see also L. 1847, c. 59.

[111] Ibid., Art. VI, §1.

The new Constitution takes effect on January first.

The Legislature enacts a series of statutes implementing the Constitution’s new Judiciary Article.[112]  As part of this Judiciary Act of 1847, the Supreme Court Justice in each District having the shortest time to serve is to be ex officio the presiding justice of the General Term for that District.  It is also provided that Courts of Oyer and Terminer of the County of New York should include a Supreme Court Justice and any two of the Judges of the Court of Common Pleas of the City and County, or the Mayor, Recorder, and aldermen of New York City).

[112] L. 1847, c. 280.

A special election is held in June at which the State’s voters choose the four elective Judges of the Court of Appeals.  These four Judges are to serve terms of two, four, six, and eight years (plus the months remaining in 1847), respectively, as drawn by lot after their election.  Thereafter, upon expiration of any of these terms, an election will be held to fill the position for an eight-year term.  The four Judges first elected are Freeborn G. Jewett, Greene C. Bronson, Charles H. Ruggles, and Addison Gardiner.  Judge Jewett, as the first to be selected in the ensuing drawing, earns the two-year term and designation as Chief Judge.

Also elected are the Clerk of the Court of Appeals, 32 Supreme Court Justices, and County Judges, Surrogates, and all other judicial officers — all to take office on July 5, 1847.

The four newly elected Judges of the Court of Appeals are joined on the Court by a rotating corps of four Supreme Court Justices (the four having the shortest time remaining in office) serving annual terms.[113]  The first of those Justices to serve (so-called ex officio Judges of the Court of Appeals) are Samuel Jones, Thomas A. Johnson, Charles Gray, and William B. Wright.

[113] Const. (1846), Art. VI, §2.

The Legislature abolishes common law forms of pleading in favor of a statutory code of procedure (the Field Code), as directed by the 1846 Constitution.[114]  This code, the Code of Procedure, which is intended to simplify legal proceedings, is one of the first of its kind in the nation.

[114] L. 1848, c. 379.

In September, the first term of the new Court of Appeals is held.  It lasts for three weeks.  During this term, the Court hands down its first decision:  Pierce v. Delanter (1 NY 3), upholding the propriety of a Court of Appeals Judge reviewing a case in which he took part in a lower court.

Greene Carrier Bronson, an Associate Judge of the Court of Appeals and a longtime resident of Oneida County, and at various times Oneida County Surrogate, State Assemblyman, State Attorney General, and Chief Justice of the pre-1847 Supreme Court, succeeds Freeborn Jewett as Chief Judge of the Court of Appeals.  Judge Bronson retires from the bench the following year.

Charles Herman Ruggles, an Associate Judge of the Court of Appeals from the Hudson Valley, who had served prominently as a delegate at the State’s 1846 Constitutional Convention, chairing its Judiciary Committee, succeeds Greene Carrier Bronson as Chief Judge of the Court.

Governor Washington Hunt appoints Samuel A. Foot as an Associate Judge of the Court of Appeals.

A New York City trial court grants a petition for a writ of habeas corpus brought on behalf of eight slaves seeking freedom while they were in transit through New York State with their owners.  Popularly known as the Lemmon case, the trial court’s decision is later upheld by the Court of Appeals.[115]

[115] Lemmon v. The People, 20 NY 562 (1860).

Alexander Smith Johnson, from Oneida County, takes office as an Associate Judge of the Court of Appeals.  He will later become Chief Judge of the Court.

By statute, the Legislature prohibits aldermen from sitting as part of a Court of Oyer and Terminer, or in Courts of General or Special Sessions of the Peace.[116]  The Legislature further provides that Courts of Oyer and Terminer for New York City may be held by a Supreme Court Justice; and that Courts of General Sessions of the Peace for the City may be held by the Recorder or City Judge (and that when either of these Courts is presided over by a single judge, that judge may exercise all of the powers of the Court).

[116] L. 1853, c. 217.

Governor Horatio Seymour appoints Hiram Denio, a former Oneida County District Attorney, Circuit Judge, clerk of State Supreme Court, and Supreme Court Reporter, from Oneida County, as an Associate Judge of the Court of Appeals.

Addison Gardiner, an Associate Judge of the Court of Appeals from Monroe County and former Lieutenant Governor of the State, succeeds Charles Ruggles as Chief Judge of the Court of Appeals. 

Hiram Denio, an Associate Judge of the Court of Appeals succeeds Addison Gardiner as Chief Judge of the Court.  He serves as Chief Judge for two years; and then serves again as Chief Judge from mid-1862 through the end of 1865.

Judge Denio enjoys two separate terms as Chief Judge (the only person in New York State history to do so) because of the then-prevailing rule that the Court’s Chief Judge should be the elected Judge having the shortest time to serve on the Court.  When he first assumed office as Chief Judge, Judge Denio had only two years remaining in his term on the Court.  Upon his re-election to the Court in 1857, he lost that distinction, but he will regain it some five years later when he again becomes the Judge of the Court having the shortest time left to serve.

George Franklin Comstock, New York’s first official State Reporter, from Syracuse, is elected as an Associate Judge of the Court of Appeals.

Samuel Lee Selden, a Supreme Court Justice from Rochester, is elected as an Associate Judge of the Court of Appeals.

Alexander Smith Johnson, an Associate Judge of the Court of Appeals from Oneida County, and later New York City, succeeds Hiram Denio (then having served his first term as Chief Judge) as Chief Judge of the Court.

Henry Ebenezer Davies, a former Corporation Counsel for New York City and Supreme Court Justice from the City, is elected as an Associate Judge of the Court of Appeals.

George Franklin Comstock, an Associate Judge of the Court of Appeals from Syracuse, succeeds Alexander Smith Johnson as Chief Judge of the Court.

Following the end of his service on the Court of Appeals, Judge Comstock will serve with distinction as a delegate at New York’s 1867 Constitutional Convention.  At that Convention, and as a member of its Judiciary Committee, he will play a prominent role in the drafting of a new Judiciary Article, which will become the only component of the new Constitution proposed by the Convention to be adopted by the State’s voters.  Among the most significant of the elements of the new Article will be its provision for fourteen-year terms of office for all Judges of the Court of Appeals, including the Chief Judge.

Judge Comstock later runs unsuccessfully for election to the office of Chief Judge.

William B. Wright, a Supreme Court Justice from Monticello and later Kingston, and formerly an ex officio Judge of the Court of Appeals, is elected as an Associate Judge of the Court of Appeals.

Samuel Lee Selden, an Associate Judge of the Court of Appeals from Rochester, succeeds George Franklin Comstock as Chief Judge of the Court.  He serves only briefly.

Hiram Denio succeeds Samuel Lee Selden as Chief Judge of the Court of Appeals, thereby beginning his second term in that capacity.

Governor Edwin Morgan appoints Henry Rogers Selden, a former Lieutenant Governor of New York from Rochester, as an Associate Judge of the Court of Appeals.

Henry Rogers Selden, an appointed Associate Judge of the Court of Appeals, is elected to a full term as an Associate Judge of the Court.  He will serve only briefly, however, as he resigns early in 1865 on account of ill health.

Governor Reuben E. Fenton appoints John Kilham Porter, a practicing lawyer from Albany, as an Associate Judge of the Court of Appeals.  After leaving the Court in 1867, Porter will practice law in New York City and later serve as the first president of the New York State Bar Association.

The voters reject a constitutional amendment that would have created a five-member Commission of Appeals to assist the Court of Appeals in the disposition of its heavy caseload.

Ward Hunt, a former State legislator and Mayor of Utica, is elected as an Associate Judge of the Court of Appeals.  Hunt will later (1868) serve as Chief Judge of the Court and then as an Associate Justice of the United States Supreme Court.

Henry Ebenezer Davies, an Associate Judge of the Court of Appeals, succeeds Hiram Denio as Chief Judge of the Court.  Following his judicial service, Judge Davies will serve as Dean of the Law School of the City of New York (now the New York University School of Law).

New York’s voters approve the holding of a State Constitutional Convention in 1867.

A Constitutional Convention is held.  At this Convention, particular attention is paid to reform of the Judiciary’s appellate operations, including both those of the Court of Appeals and of the General Terms.  As to the former, there is great concern for the Court’s seeming inability to keep up with its workload; as to the latter, there is a belief that the large number of General Terms (i.e., one for each Judicial District) is producing unhelpful disharmony in the law across the State.[117]

The Convention drafts a new Constitution the provisions of which are ultimately submitted separately to the voters who reject all but the provision for a new Judiciary Article.  That new Article is approved, albeit by the smallest of margins, to become effective in 1869.

The new Judiciary Article makes the following changes:

• Reform of the Court of Appeals.  The Court of Appeals is restructured to consist of a Chief Judge and six Associate Judges, all elected by the voters of the State for terms of 14 years (this length is chosen because it represents the average length of judicial service in those jurisdictions in New York and across the country where judges serve during good behavior).[118]  At the same time, all the Court’s incumbent Judges are constitutionally dismissed from office to be replaced by seven new Judges elected to 14-year terms at a special election held on May 17, 1870, which terms are scheduled to commence on the first Monday of July next thereafter (July 4, 1870).  No provision is made for staggering the terms of the new Judges as had been the case in the 1846 Constitution.  To ensure fairness in the selection of so many Judges at one time (i.e., to ensure some minority political representation), new Article VI provides that statewide voters, at the first election of the Court’s members, may only vote for the Chief Judge and up to four other members of the Court.[119]
  The new Judiciary Article also includes provision for establishment of a Commission on Appeals, to function as a kind of second-tier Court of Appeals.[120]  The Commission will be presided over by the four elected Judges of the Court of Appeals in service prior to the 1869 constitutional amendment plus a fifth commissioner to be selected by the Governor; and will hear all cases pending before the Court on January 1, 1869, except as otherwise directed by the Court.  The primary object of this Commission, which is given three years in which to do its work, is to give the Court a fresh start, with a clean slate and no case backlog (the Court of Appeals in 1870 was heavily in arrears).  A second objective is to retain a judicial function for the then-sitting Judges of the old Court of Appeals, who will otherwise lose their offices to make room for the Judges being elected to sit on the new Court.
  Done away with is the practice of rotating Supreme Court Justices into service on the Court of Appeals.  There had been broad objection to this practice, seeing in it a built-in source of institutional instability.  To the same end of securing more continuity for the Court, the constitutional framers extend the terms of office for Court of Appeals Judges from eight to 14 years.[121]
  Finally, the new Judiciary Article discontinues election of the Clerk of the Court of Appeals and provides that, henceforward, the position shall be filled by appointment by the Court.
• Reform of the General Terms.  The new Judiciary Article requires the Legislature, at its next session, to establish up to four General Terms of the Supreme Court.  It also permits the Legislature to change the General Term structure in the future, but not more than once every five years.[122]
  By statute, the Governor is empowered to select the Justices of each General Term from among the sitting Supreme Court Justices.  Each General Term will consist of a Presiding Justice, who will serve for the balance of his term as a Supreme Court Justice, and up to three Associate Justices, who are to serve five-year terms.[123]  The new Judiciary Article also reinstates a provision that had been included in the 1821 Constitution but then dropped out of the 1846 Constitution forbidding judges from reviewing on appeal cases over which they had presided below.[124]
  The new Judiciary Article does not include any specific provision setting forth the jurisdiction of the General Terms.
• Reform of the trial courts.  The new Judiciary Article continues the Supreme Court;[125] gives constitutional recognition to superior courts in New York, Brooklyn, and Buffalo,[126] and Courts of Special Sessions for the trial of lesser criminal offenses;[127] continues County Judges as the Surrogates of their respective counties, while empowering the Legislature to establish a separate office of Surrogate in any county having a population greater than 40,000;[128] and, for the first time, formally authorizes the Legislature to provide for the assignment of Judges of the Superior Courts in New York City to Supreme Court, when necessary.[129]
  The new Article also restores original civil jurisdiction to County Court (although capped at claims of $1,000).[130]  Further, it authorizes County Judges to sit in County Court (or to preside at Courts of Sessions) in any county other than New York or Kings, upon request of the County Judge of such County.[131]
  As did the Constitutions of 1822 and 1846, the new Judiciary Article continues Courts of Oyer and Terminer but without specific provision for their constitution or organization.[132]
• Judicial Districts.  The existing Judicial District structure is preserved, with provision for five Supreme Court Justices in the New York City Judicial District and four in each of the other Judicial Districts.[133]
• Judicial terms of office and mandatory retirement for judges.  The new Judiciary Article provides 14-year terms of office for judges and justices of the major trial courts:  Supreme Court, Superior Court of New York City, Court of Common Pleas for the City and County of New York, Superior Court of Buffalo, and City Court of Brooklyn.[134]  This is a compromise that was reached at the Constitutional Convention, where some delegates had favored tenure in office during good behavior ending at age 70 while others had favored fixed terms, ranging from eight to 14 years, some accompanied by provision for non-eligibility for re-election.  As was the case when the term of office was fixed for Judges of the Court of Appeals, a 14-year term was chosen because 14 years was understood to be the average term of judicial service in the courts of the State and of the United States where judicial tenure during good behavior prevails.  Reelection to a subsequent term will be available (there had been some thought among the delegates that reelection ought not to be available but, ultimately, the Convention declined to take that path).  Some advocated a rotation plan providing for a new judge to be elected every two years; and that a person filling a judicial vacancy would only serve out the unexpired term of his predecessor.   Most of the delegates, however, believed this to be unnecessary, feeling that the ordinary vicissitudes of life were enough to assure sufficient change for the court.[135]
  A six-year term of office is fixed for County Court Judges.[136]
  The new Judiciary Article includes a provision requiring that a judicial vacancy on the Court of Appeals, the Supreme Court, and certain other courts be filled at the next general election occurring not less than three months after the happening of the vacancy.  This is to give the people enough time to be informed of the vacancy.  The constitutional text includes a clarifying provision that a person elected to fill a vacancy does so for a full term (both as to Supreme Court Justices and Judges of the Court of Appeals).[137]
  As for judicial retirement, the new Judiciary Article also restores a mandatory retirement age for judges.  Established at age 60 under the 1822 Constitution, it had been dropped by the 1846 Constitution.  Now it is fixed at age 70 for all judges except for Justices of the Peace.[138]
• Judicial compensation.  The new Judiciary Article expressly provides that judicial compensation shall “be established by law, [and] not be diminished during [a judge’s] official [term]”, and drops the former ban on its increase by the Legislature.[139]
• Judicial selection.  The new Judiciary Article provides for submission of two ballot propositions at the 1873 general election, inviting the people to determine whether Judges of the Court of Appeals and Supreme Court Justices, as well as County Judges and Judges of certain City Courts, respectively, should be appointed rather than elected to office.[140]  The choice to put these questions to the voters reflects an important political compromise.  The 1867 Convention was deeply divided on the issue of judicial selection and, were it not for this compromise, it might never have agreed to put the new Judiciary Article before the voters.
• Removal of judges from office.  The new Judiciary Article also provides for removal of Judges of the Court of Appeals and Supreme Court Justices by concurrent resolution of both Houses of the Legislature (two-thirds of the members of each House voting therefor).[141]  It also authorizes legislative removal of lower court judges — by the Senate alone, on recommendation of the Governor.[142]
• Judges not to hold other offices.  The new Article bars Judges of the Court of Appeals and Supreme Court Justices from holding any other office or public trust.[143]
• Power to fix practice and procedure in the courts.  The 1846 provision calling for code commissioners is omitted from the new Judiciary Article.  In its place, a new provision is added conferring upon the Legislature the same power to alter and regulate procedure as it had theretofore exercised.  This continues legislative control over practice and procedure in the courts.[144]

An effort in the 1867 Constitutional Convention to create a Court of Claims and eliminate the Legislature’s historic power to audit and allow private claims against the State fails.  While the delegates do, in fact, agree upon creating a Court of Claims, the effort comes to naught because provision for that creation is not included in proposed new Article VI but, instead, in a proposed new Article V (relating to State officers), which is not approved by the electorate.[145]

[117] Lincoln, Charles Z., Constitutional History of New York, Vol. 2, p. 265.

[118] Judiciary Article (1869), §2; see Lincoln, Charles Z., Constitutional History of New York, Vol. 2, p. 252.

[119] Judiciary Article (1869), §2.

[120] Ibid., §4.

[121] See general discussion of proceedings during the 1869 Constitutional Convention in Lincoln, Charles Z., Constitutional History of New York, Vol. 2, pp 251-262.

[122] Judiciary Article (1869), §7.

[123] Ibid.

[124] Ibid., §8.

[125] Ibid., §6.

[126] Ibid., §12.

[127] Ibid., §26.

[128] Ibid., §15.

[129] Ibid., §12.

[130] Ibid., §15.

[131] Ibid.

[132] Ibid., §7.

[133] Ibid., §6.

[134] Ibid., §13.

[135] See general discussion of proceedings during the 1869 Constitutional Convention in Lincoln, Charles Z., Constitutional History of New York, Vol. 2, pp 251-262.

[136] Judiciary Article (1869), §15.

[137] Ibid., §§3 [Court of Appeals], 9 [Supreme Court], 12 [other courts].

[138] Ibid., §13.

[139] Ibid., §14.

[140] Ibid., §17.

[141] Ibid., §11.

[142] Ibid.

[143] Ibid., §10.

[144] Ibid., §8.

[145] Lincoln, Charles Z., Constitutional History of New York, Vol. 2, p. 326.

Martin Grover, a Supreme Court Justice from Allegany County and former ex officio Judge of the Court of Appeals, is elected as an Associate Judge of the Court of Appeals.

William B. Wright, an Associate Judge of the Court of Appeals succeeds Henry Ebenezer Davies as Chief Judge of the Court of Appeals.  He serves only briefly.

Ward Hunt, an Associate Judge of the Court of Appeals succeeds William B. Wright as Chief Judge of the Court of Appeals.  He serves only briefly in that office — losing his seat by operation of the new 1869 Judiciary Article, which dismisses all the incumbent Judges of the Court of Appeals effective in 1870.  He then becomes a Commissioner on the Commission on Appeals for the Court of Appeals as established by operation of the new constitutional Judiciary Article.

Thereafter, in 1872, President Ulysses S. Grant appoints Hunt as an Associate Justice of the United States Supreme Court.

Governor Reuben Fenton appoints Lewis B. Woodruff, a former Justice of the Superior Court of New York City and a former ex officio Judge of the Court of Appeals from New York City, as an Associate Judge of the Court of Appeals. He only serves briefly, leaving the Court to become a Judge of the Court of Appeals for the Second Circuit.

Governor Reuben Fenton appoints Charles Mason, a former Madison County District Attorney and Supreme Court Justice from Madison County, as an Associate Judge of the Court of Appeals.  Prior to this appointment, Mason had run unsuccessfully for that office.

The new constitutional Judiciary Article takes effect.

Robert Earl, a former Herkimer County Judge and Surrogate from Herkimer County, is elected as an Associate Judge of the Court of Appeals.

John A. Lott, a former State legislator and Supreme Court Justice from Kings County, is elected as an Associate Judge of the Court of Appeals.

The Legislature establishes four Judicial Departments for the State, each with a General Term of Supreme Court consisting of a Presiding Justice and two Associate Justices.[146]

The four Judicial Departments, with their component Judicial Districts, are as follows:  First Department (First District); Second Department (Second District); Third Department (Third, Fourth, and Sixth Districts); and Fourth Department (Fifth, Seventh, and Eighth Districts).  The Legislature further requires that, in keeping with the constitutional mandate that General Terms be held in each Judicial District, the First Department be held in New York City; the Second Department be held in Brooklyn (not yet part of New York City) and Poughkeepsie; the Third Department be held in Albany, Binghamton, Elmira, Plattsburgh, and Ogdensburg; and the Fourth Department be held in Syracuse, Oswego, Rochester, and Buffalo.

[146] L. 1870, c. 408.

Robert Earl, an Associate Judge of the Court of Appeals, succeeds Ward Hunt as Chief Judge of the Court.  Earl serves as Chief Judge for only six months — until July 1870, when he is displaced by operation of the 1869 constitutional amendment restructuring the Court of Appeals.  He then is transferred to serve as a Commissioner on the newly-created Commission of Appeals.

Democrat Sanford Church, a former Lieutenant Governor of the State from western New York, is the first elected Chief Judge of the Court of Appeals under the new constitutional formulation.  He succeeds Robert Earl.  The remaining six elected Judges of the Court divide evenly between Democrats and Republicans (they include Democrats Rufus W. Peckham (Albany County), William F. Allen (Oswego County), and Charles A. Rapallo (New York); and Republicans Charles Andrews (Onondaga County), Charles Folger (Ontario County), and Martin Grover (Allegany County)).

The Commission on Appeals begins its work.  Its members include outgoing Court of Appeals Judges John A. Lott (Chief Commissioner), Robert Earl, and Ward Hunt; a Supreme Court Justice assigned to the Court of Appeals, Hiram Gray; and a gubernatorial designee, William H. Leonard.  Its workload consists of about 800 cases that had been brought in the old Court of Appeals before 1870 and that remain pending.

There is much potential for conflict between the Court of Appeals and the Commission on Appeals although the latter appears determined to defer to the former.  This is a source of continuing concern to the Bar at the time.  This potential for conflict is clearly manifest in a comparison of two cases decided at about the same time:  the Court’s decision in Thurber v. Blanck (50 NY 80) and the Commission’s decision in Mechanics & Traders Bank v. Dakin (51 NY 519).  Although the two cases consider the same issue, their holdings are very different.

William Fitch Allen, a former State legislator, Supreme Court Justice, and State Comptroller from Oswego, is elected as an Associate Judge of the Court of Appeals.

Charles A. Rapallo, a practicing lawyer from New York City, is elected as an Associate Judge of the Court of Appeals.

Rufus Wheeler Peckham, Sr., a former member of Congress and Supreme Court Justice from Albany, is elected as an Associate Judge of the Court of Appeals.  Three years after assuming office, Peckham is lost at sea in the north Atlantic.

Charles J. Folger, a former Ontario County Judge, State legislator, and constitutional convention delegate from Geneva, is elected as an Associate Judge of the Court of Appeals.

Charles Andrews, a former Onondaga County District Attorney, Mayor of Syracuse, and constitutional convention delegate from Onondaga County, is elected as an Associate Judge of the Court of Appeals.

A Code Commission is created.  It produces a Code of Civil Procedure.

In a further effort to clean up the Court of Appeals’ case backlog, the Legislature gives first passage to a constitutional amendment providing for the transfer of up to 500 then-pending cases from the Court to the Commission on Appeals.

It is hard to understand why the framers of this amendment might have believed that it would have provided much help for the Court.  First, under the new Judiciary Article, the Court of Appeals has only seven judges instead of the eight enjoyed by its predecessor.  Second, the new Article makes no provision for change in the Court’s jurisdiction.  While there is hope that a more stable Court, produced by eliminating the staggered terms and the continuing rotation in of half the Court from among the senior Supreme Court Justices could be a more efficient body and better able to cope with the caseload, such does not turn out to be the case.  At best, an amendment permitting transfer of the Court’s excess caseload at one point in time could only be expected to provide momentary, limited relief for the Court.

Legislative second passage and overwhelming voter approval are given to the constitutional amendment transferring more cases to the Commission on Appeals.[147]

Over the next five years, the Commission decides approximately 1,000 cases.

[147] Judiciary Article (1869), §4 [amended 1872].

In the wake of the defeat of the constitutional amendments proposed by the 1867 Constitutional Convention (all except the one proposing a new Judiciary Article were rejected by the voters), Governor Hoffman calls for legislative establishment of a constitutional commission.  In its original form, the resulting legislation bars the Constitutional Commission from considering amendments to the Constitution’s Judiciary Article, presumably because it had only recently been adopted.  While this prohibition is later removed, the Commission ends up proposing only one change bearing upon the courts:  i.e., enabling gubernatorial appointment of judges of courts of record in large cities.  This proposal does not achieve the requisite two legislative approvals, however, and so it never reaches the voters.

The Court of Appeals decides Smith v. People (47 NY 330), holding that organization of Courts of Oyer and Terminer is within the Legislature’s control with the exception that a Supreme Court Justice must be a member of the Court and must preside.

State Supreme Court Justice George Barnard is impeached and removed from office following conviction.  Barnard is a product of Tammany Hall and is best remembered as a key figure in the rise and fall of the Tweed Ring.  He is impeached on corruption charges along with several other Tammany judges, including Benjamin Cardozo’s father, Supreme Court Justice Albert Cardozo.  Cardozo resigns from office before standing trial.  Barnard stands trial and is removed from office following conviction, making him the first public officer in New York State history to be impeached and convicted.  Also, to this day, he remains the only New York State Supreme Court Justice to have been removed from office following impeachment.

In the same year, the Governor delivers to the Senate charges of official misconduct against a series of county and city-level judges.  Some are later removed from office, while some are exonerated.

The voters overwhelmingly (three to one against) reject ballot propositions mandated by the 1869 amendments to the Constitution’s Judiciary Article calling for appointment of Judges.[148]

Since those amendments were only narrowly adopted (by fewer than 7,000 votes statewide), the fact that a proposal to make the Court of Appeals an appointive bench was so resoundingly defeated in 1873 appears to justify the decision of the 1869 framers to bifurcate the issues (a new Judiciary Article and elimination of the franchise for selection of Court of Appeals’ Judges, respectively) for voter consideration.

[148] Ibid., §17.

Court of Appeals Judge Rufus Peckham dies at sea.  Governor John Dix appoints Alexander Johnson, a former Chief Judge of the Court and current member of the Commission on Appeals from Oneida County, to fill his seat on an interim basis.  Thereafter, Johnson is defeated by Theodore Miller at the November 1874 general election in his bid to attain a full term on the Court.

By statute, the Legislature provides that the Court of Appeals “shall have general jurisdiction to review on appeal every actual determination made at a General Term of the Supreme Court” and the General Terms of certain other courts.

A $500 minimum is imposed on any money judgment appealable to the Court of Appeals.

After briefly serving as a Commissioner of Appeals, Alexander Smith Johnson is appointed by Governor John Dix as an Associate Judge of the Court of Appeals.  This is Judge Johnson’s second tour of duty on the Court, having earlier served as an Associate Judge (1852-1857) and as Chief Judge (1858-1859).

Theodore Miller of Columbia County is elected to a seat as an Associate Judge of the Court of Appeals, succeeding Alexander Johnson.  Miller formerly had served as Columbia County District Attorney, Supreme Court Justice in the Third Judicial District, and Presiding Justice of the General Term in the Third Judicial Department.

In July, the Commission on Appeals goes out of existence.

Governor Samuel J. Tilden appoints Robert Earl, a former Associate Judge of the Court of Appeals and Commissioner on the Commission on Appeals, once again to serve as an Associate Judge of the Court.

By statute, the Legislature provides that, where a child between 3 and 16 is placed in an institution, it becomes the duty of the placement authorities to place him or her, as far as may be practicable, in an institution governed or controlled by an officer or person of the same religious faith as the child’s parents.

The Constitution is amended to add what is now section 19 of Article III.  This provision bars the Legislature from auditing or allowing any private claim or account against the State.

The New York State Bar Association is organized.  While, initially, it is voluntarily formed, it is formally incorporated by statute in the following year.[149]

[149] L. 1877, c. 210.

A constitutional amendment is proposed (and given first legislative passage) providing for two additional Supreme Court Justices in the Second Judicial District.

A State Board of Audit is created by the Legislature to hear private claims against the State not heard by the Canal Appraisers.[150]  Sovereign immunity is waived in contract actions but not tort actions.

[150] L. 1876, c. 444.  The State Board consisted of the State Comptroller, Secretary of State, and State Treasurer.

Following his appointment in 1875 to fill a vacancy in the office of Associate Judge of the Court of Appeals, Judge Robert Earl is elected to a full term in that office.

Two constitutional amendments are proposed.  First, the 1876 constitutional amendment proposing the addition of new Supreme Court Justices is modified to call for the addition of only one new Justice in the Second Judicial District.  As thus modified, it secures first passage.  Second, an amendment is proposed to permit courts to be held by persons other than justices thereof when the public exigency requires.

The constitutional amendment given first passage by the Legislature in 1877 increasing the number of Supreme Court Justices in the Second Judicial District is given second passage.

Governor Lucius Robinson appoints Samuel Hand, a practicing lawyer from Albany, as an Associate Judge of the Court of Appeals.  Hand serves less than one year on the Court.

George Franklin Danforth, a practicing lawyer from Rochester, is elected as an Associate Judge of the Court of Appeals.

The constitutional amendment increasing the number of Supreme Court Justices in the Second Judicial District, given second legislative passage in 1878, is approved by the State’s voters.[151]

[151] Judiciary Article (1869), §6 [amended 1879].

The first Chief Judge elected to the revamped 1870 Court of Appeals, Sanford Church, dies.  A Democrat, he is replaced by the Governor’s interim appointment of Charles Folger, a sitting Associate Judge of the Court who is a Republican from Ontario County.  Judge Folger is then opposed in the 1880 election for a full term by yet another sitting Associate Judge of the Court, Charles Rapallo, a Democrat.  In a presidential election year in which James Garfield, the Republican, defeats Winfield Scott Hancock, the Republican, Folger, prevails.

The contest between Folger and Rapallo exposes a critical problem with an elective Court of Appeals bench, i.e., what happens when two sitting judges on the Court vie for the Chief Judge’s seat.  To what extent would their contest and their implicit ambitions ripen into a distraction for the Court in the conduct of its business?  Not much, fortunately, at least for a while.  Over much of the next century, while the office of Judge of the Court of Appeals remains an elective one, the political parties generally agree to endorse the sitting senior Associate Judge, regardless of political affiliation, to fill a vacancy in the office of Chief Judge (likewise, Governors consistently choose the senior Associate Judge to fill interim vacancies in the office of Chief Judge).  The effect of this approach is to eliminate unseemly electoral contests between sitting judges or between sitting judges and lawyers outside the Court.  As will later be seen, however, this is to change dramatically in the early 1970s.

Governor Alonzo Cornell appoints Francis Miles Finch, a former Cornell Law School Dean from Ithaca, to fill a vacancy in the office of Associate Judge of the Court of Appeals.  Finch is again appointed to the Court the following year, after which, in 1881, he is elected to a full term as an Associate Judge of the Court.  Following his service on the Court of Appeals, Finch becomes President of the New York State Bar Association.

The Constitution is amended to provide that when the term of any Court of Appeals Judge or Supreme Court Justice is cut short by application of the constitutional age limit, and the Judge or Justice had served ten years in the office, compensation shall be continued to the end of the term for which the Judge or Justice was elected.[152]

[152] Judiciary Article (1869), §13 [amended, 1880].

A constitutional amendment is proposed to add two additional Supreme Court Justices in each Judicial District.

A constitutional amendment is proposed to provide for a fifth General Term of Supreme Court and to add additional Supreme Court Justices in many Judicial Districts.

The Legislature enacts New York’s first comprehensive code of criminal procedure.[153] This new code is based largely on the work of the Field Commission (the Commission on Practice and Pleadings) of the 1840s.  That Commission had proposed a criminal procedure code in 1849 and a penal law in 1864.  This 1881 enactment is substantially like these earlier efforts.

[153] L. 1881, c. 442.

Charles Andrews, an Associate Judge of the Court of Appeals, is appointed by Governor Alonzo B. Cornell to succeed Charles Folger as Chief Judge of the Court of Appeals.  Folger had resigned to become President Chester A. Arthur’s Secretary of the Treasury.

Judge Andrews serves only as interim Chief Judge upon this appointment, leaving the office in 1883 when he is defeated for election to a full term by William Crawford Ruger.  He runs again for Chief Judge in 1892, however, and wins — and then continues to serve as Chief Judge until he reaches the mandatory retirement age in 1897.

Governor Alonzo Cornell appoints Benjamin Franklin Tracy, a former United States Attorney for the Eastern District of New York from Tioga County and later New York City, as an Associate Judge of the Court of Appeals.  Tracy serves only briefly on the Court.

Provision is made for appeals to the General Term of Supreme Court.

The voters approve the constitutional amendment providing for a fifth General Term of Supreme Court and adding to the number of Supreme Court Justices.[154]

[154] Judiciary Article (1869), §28 [added, 1882].

William Crawford Ruger, from Syracuse, is elected to succeed Charles Andrews as Chief Judge of the Court of Appeals.

The Legislature establishes a Board of Claims, consisting of three Commissioners, and empowers it to hear non-tort claims against the State.[155]  This Board replaces the Board of Canal Appraisers and Board of Claims.  At the same time, a constitutional amendment is proposed to require that all claims against the State be adjudicated by either Supreme Court or the Court of Appeals.  This amendment fails to pass.

[155] L. 1883, c. 205.

Rufus W. Peckham, Jr., a former Albany County District Attorney and Supreme Court Justice, from Albany is elected as an Associate Judge of the Court of Appeals.  He later leaves the Court, in 1895, when President Grover Cleveland appoints him as an Associate Justice of the United States Supreme Court.

In People ex rel Lawrence v. Mann (97 NY 530), the Court of Appeals holds that Justices of the Peace do not come within the provisions of the 1869 constitutional Judiciary Article and, therefore, that they are not subject to the Constitution’s mandatory retirement age for judges.

State voters overwhelmingly (by a twenty-to-one margin) call for the holding of a  Constitutional Convention.  Political infighting between then-Governor David Hill, a Democrat, and the Republican Legislature prevents the Convention from meeting for the next eight years, however.

The Legislature eliminates all legal obstacles to the practice of law by women in the New York State courts.

Kate Stoneman, from Chautauqua County, becomes the first woman admitted to the practice of law in New York.[156]  Even though she already had passed the Bar Exam and could practice law in New York, Stoneman will later enter Albany Law School, in 1895, at age 54.  She graduates (the first woman to do so) in 1898.

[156] Http://katestonemanproject.org/katestonemen.shtml (last visited May 29, 2025).

To help the Court of Appeals, manage its rapidly growing caseload, the Legislature gives first passage to a constitutional amendment permitting the Governor, in his discretion, to temporarily designate seven Justices of the Supreme Court to act as Associate Judges of the Court of Appeals and to form a second division of that Court.  Provision also is made for a second Chief Judge.

This measure acquires particular public urgency because it had grown apparent that the Constitutional Convention approved by the voters in 1886 would not be sitting any time soon.   For this reason, the Legislature determines that the Court of Appeals’ caseload issues are such that they must be addressed now, outside the framework of a Convention.

The constitutional amendment authorizing a second division of the Court of Appeals, first approved the preceding year, is given second passage by the Legislature and is then overwhelmingly approved by the voters (498,114 for and 55,822 against) at the polls.  It becomes effective January 1, 1889.[157]  This second division of the Court will function until October 1892.

Even with adoption of this constitutional amendment, there remains disagreement as to the most effective means by which to address growth in the Court of Appeals’ caseload.  Other proposals being touted at the time include limiting the number of cases that can be taken to the Court annually to 500 and increasing the number of Judges of the Court.

All of this plays out against a background of great dissatisfaction in the Bar and among the public with the functioning of the judicial system generally.

[157] Judiciary Article (1869), §6 [amended 1888].

Governor David Hill appoints John Clinton Gray, a practicing lawyer from New York City, as an Associate Judge of the Court of Appeals.  In November, Gray is elected to a full term on the Court.

The Legislature gives first passage to a constitutional amendment to authorize the addition of two new Supreme Court Justices in each of the First and Second Judicial Districts, and one new Justice in each of the other Judicial Districts.

Denis O’Brien, a former State Attorney General from Watertown, is elected as an Associate Judge of the Court of Appeals.

The Legislature authorizes creation of a Judiciary commission.[158]  Historians suggest that it does so at this time because it believes need for reform of the judicial system is of such importance that the State cannot wait for the holding of a Constitutional Convention (a Convention that the voters have already approved but that is being held up by a political dispute between the Republican Legislature and Democratic Governor) at which such need might be addressed.[159]

This Judiciary commission proceeds to develop many proposals for change in the Judiciary article of the Constitution, including the following:

• A change in the number of Supreme Court Justices, specifying different numbers for the eight extant Judicial Districts.
• Authorization for the Legislature to alter the Judicial District structure once every ten years.
• Authorization for Supreme Court Justices elected in one Judicial District to serve in another Judicial District.

[158] L. 1890, c. 189.

[159] See general discussion of the Judiciary Commission of 1890, Lincoln, Charles Z., Constitutional History of New York, Vol. 2, pp 682 et seq.

The Legislature gives second passage to the constitutional amendment proposed in 1889 regarding the number of Supreme Court Justices.  This amendment does not go to the voters until 1892, when it is defeated at the polls.

A proposal is once again introduced in the Legislature to increase the size of the Court of Appeals to fifteen judges.  It attains first passage.

The election of 1891 puts Democrats in control of both the Legislature and the executive branch, thereby paving the way for an agreement as to the timing of a Constitutional Convention.

Governor Roswell Flower appoints Robert Earl, an Associate Judge of the Court of Appeals, who had already briefly served as Chief Judge of the Court (in 1870), to fill a vacancy in the office of Chief Judge occasioned by the death of William Ruger.

In January, Governor Flower appoints Isaac Horton Maynard, a former State legislator and Delaware County Surrogate from Delaware County, to fill a vacancy as an Associate Judge of the Court of Appeals.  In December, Governor Flower again appoints Maynard to fill a vacancy on the Court.  Maynard is later defeated when running for election to a full term on the Court.

Charles Andrews, an Associate Judge of the Court of Appeals who had briefly served as Chief Judge of the Court (in 1881-82), succeeds Robert Earl as Chief Judge.  Earl had been filling a vacancy in the position.

Edward Theodore Bartlett, a lawyer from New York City, is elected as an Associate Judge of the Court of Appeals.

New York’s fourth Constitution is adopted following a Constitutional Convention, with all provisions to take effect on January 1, 1895.  It includes a new Judiciary Article, providing for:

• Appellate reform.  At the outset of the Constitutional Convention, its President, Joseph H. Choate, had declared that “relief of the Court of Appeals” was “a most important subject for [the Convention] to consider.”  Nonetheless, the Convention proceeded to devote as much attention to manifold problems with operation of the General Terms as it did to those of the Court of Appeals.
  Accordingly, the Convention proposed elimination of the General Terms and establishment of the Appellate Divisions we have today.[160]  In doing this, the Convention was simultaneously addressing calendar problems in the Court of Appeals.  This was done by constituting the new Appellate Division as the court of final review on all appeals of the facts from a trial court (leaving the Court of Appeals without jurisdiction of such appeals) and limiting appeals to the Court of Appeals on questions of law to those situations where the Appellate Division reversed the lower court or, if it affirmed, it did so by a divided court.[161]
  In following this approach, the 1894 Convention rejected the many solutions to the Court of Appeals’ calendar problems that had been promoted over the preceding years, including proposals that there be multiple panels of the Court of Appeals, or that the Court should be expanded in size.  Also rejected was an effort to permit the Legislature to enlarge the jurisdiction of the Court of Appeals, as well as to constrict it.
  In promoting establishment of the Appellate Division, some at the Constitutional Convention sought to make it a court separate from the Supreme Court and to elect its justices separately in the Judicial Departments (as opposed to having them designated by the Governor from among the corps of Supreme Court Justices).  This argument was rejected, however, as was another argument that not just Supreme Court Justices but also Judges of other trial courts should be eligible for designation to the Appellate Division.  Accordingly, the Appellate Division became the “Appellate Division of the Supreme Court.”
• Retirement age of judges.  While the Constitutional Convention saw some effort made to increase the mandatory judicial retirement age from 70 to 75, in the end it was left at age 70.  Likewise, although the Convention gave some consideration to shortening the 14-year terms of Supreme Court Justices, ultimately, no change was made.
• Judicial Salaries.  The 1846 Constitution had prohibited the diminution or increase of judicial salaries during a judge’s term of office.[162]  Thereafter, the 1867-68 Constitutional Convention eliminated the prohibition on increase in salaries in the new Judiciary Article later approved by the voters.  While the 1894 Constitutional Convention originally sought to preserve this elimination, it ultimately determined to restore the 1847 prohibition on increase.[163]
• Court Administration.  The new Appellate Division was given the administrative power to fix the times and places for the holding of trial and appellate terms, and to assign justices thereto.[164]  Prior to this time, the Supreme Court Justices themselves had set such times and places but, in the Constitutional Convention, it was argued that a change was in order (1) to keep Supreme Court from having absolute power over these matters relative to themselves, and (2) to keep Judges of the Superior Court and Judges of the Court of Common Pleas, whose numbers surpassed those of Supreme Court Justices in the First Judicial Department, from enjoying power to dictate assignments of Supreme Court Justices there.

Aside from the changes already noted, the new Judiciary Article ushers in some further court reforms.  These include:

• Restructuring of the trial courts.  Certain lower courts (the Superior Court of New York City, the Court of Common Pleas for the City and County of New York, the City Court of Brooklyn, and the Superior Court of Buffalo) are abolished and their cases and judges are transferred to the Supreme Court.[165]  Likewise, the Circuit Courts and Courts of Oyer and Terminer are abolished.[166]
  The abolition of these courts eliminates those courts that formerly were the appellate tribunals for inferior and local courts in New York, Brooklyn, and Buffalo.  To replace these appellate tribunals, the new Judiciary Article provides that appeals from such inferior and local courts should be heard in Supreme Court as the Appellate Divisions should direct unless otherwise provided by the Legislature.[167]  This is a forerunner to today’s Appellate Term.
• Appellate Divisions.  The State is divided into four Judicial Departments each to be served by the newly established Appellate Division.  The First Department is to be New York County.  The composition of the remaining Judicial Departments is to be fixed by the Legislature subject to the direction that each Department be bounded by county lines and be as compact and equal in population as can be.  The Governor is empowered to designate the Justices of the Appellate Divisions from among the corps of Supreme Court Justices for five-year terms subject to the requirement that a majority of the Justices in each Department must be residents of that Department.  There are to be seven Justices in the First Department and five in each of the others.  Justices of the Appellate Division are to be relieved of trial and motion duties, although they are permitted to perform the duties of a Justice out of court.[168]
• Lower courts.  The Legislature is authorized to establish inferior courts of civil and criminal jurisdiction provided that such courts are not to be courts of record.  The method of selection of the judges of these courts is left to the Legislature.[169]
  Along with elimination of the Courts of Oyez and Terminer, authority for County Courts to use side Justices of the Peace in criminal cases is eliminated, leaving the criminal jurisdiction of these Courts to be vested in their County Judges sitting alone.  Also, for the first time, there is authority for two County Judges in Kings County.[170]  Finally, the civil jurisdictional cap in County Court is raised to $2,000;[171] and County Judges are made full-time in larger counties (i.e., having 120,000 or more population) and in those counties as provided by the Legislature.
• Impeachment.  While there is a minor change in the Constitution’s impeachment provision, there is no substantive change in the process.[172]

[160] Const. (1894), Art. VI, §2.

[161] Ibid., Art. VI, §§2, 9.

[162] Const. (1846), §7.

[163] Const. (1894), Art. VI, §12.

[164] Ibid., Art. VI, §2.

[165] Ibid., Art. VI, §5.

[166] Ibid., Art. VI, §6.

[167] Ibid., Art. VI, §5.

[168] Ibid., Art. VI, §2.

[169] Ibid., Art. VI, §18.

[170] Ibid., Art. VI, §14.

[171] Ibid.

[172] Ibid., Art. VI, 13.

Albert Haight, a former Erie County Judge and Supreme Court Justice from Buffalo, is elected as an Associate Judge of the Court of Appeals.

The new Judiciary Article, together with the rest of the 1894 Constitution, takes effect on January 1st.

The Legislature enacts legislation creating Appellate Terms in the First and Second Judicial Departments to hear appeals from the City and Municipal Courts.[173]

[173] L. 1895, c. 946.

Celora Eaton Martin, a former Supreme Court Justice from Binghamton, is elected as an Associate Judge of the Court of Appeals.

Governor Levi Morton appoints Irving Goodwin Vann, a former Mayor of Syracuse and Supreme Court Justice from Onondaga County, to fill a vacancy as an Associate Judge of the Court of Appeals.  The next year, Vann is elected to a full term of office on the Court.

The Legislature establishes a Court of Claims to replace the Board of Claims.[174] As later determined by the Court of Appeals in People ex rel. Swift v. Luce (204 NY 478 (1912)), this Court is a statutory body notwithstanding the name.

From 1777 to 1897, New York State did not permit litigants to bring claims for damages against itself in any court.  The only recourse for injured parties had been to seek redress directly in the Legislature.

[174] L. 1897, c. 36.

Alton Brooks Parker, a former Supreme Court Justice and Judge of the second division of the Court of Appeals from Kingston, is elected as Chief Judge of the Court of Appeals.  Six years later, Parker resigns from the Court to run for the Presidency of the United States.  He is soundly defeated by Theodore Roosevelt.

The Legislature gives first passage to a constitutional amendment permitting the Governor, at the request of a majority of the Judges of the Court of Appeals, to designate up to four Justices of the Supreme Court to serve as Associate Judges of the Court until the Court’s calendar is reduced below 200 cases.

Ellen Yates Miller, of Chautauqua County, becomes the first woman to be elected as a County Clerk in New York.

The Legislature gives second passage to, and the voters thereafter approve, the constitutional amendment permitting designation of up to four Justices of the Supreme Court to serve on the Court of Appeals to help relieve calendar congestion.[175]

[175] Const. (1894), Art. VI, §7 [amended, 1899].

The voters also approve a constitutional amendment permitting the Governor to make temporary designations of Supreme Court Justices to an Appellate Division where the Presiding Justice of that Appellate Division certifies that more Justices are needed for the speedy disposition of court business.[176]

[176] Ibid., Art. VI, §2 [amended, 1899].

The Appellate Division, First Judicial Department, moves from rented headquarters on 5th Avenue and 19th Street in New York City into a new courthouse designed by James Brown Lord on the northeast corner of Madison Avenue and 25th Street, opposite Madison Square.

Governor Theodore Roosevelt appoints Edgar Montgomery Cullen, a Justice of the Appellate Division, Second Judicial Department, from Brooklyn, as an Associate Judge of the Court of Appeals.  This appointment is made pursuant to the recently adopted constitutional provision permitting the Governor to name additional Court of Appeals Judges to help meet caseload demands.

The Legislature first authorizes Children’s Court Parts as branches of criminal court parts for New York and Bronx counties.[177]

[177] L. 1901, c. 466.

The Legislature enacts chapter 515 of the Laws of 1902, relating to the Appellate Terms.

Governor Benjamin Barker Odell appoints Edgar Montgomery Cullen, an Associate Judge of the Court of Appeals, to succeed Alton Brooks Parker as Chief Judge of the Court.  Parker had resigned to run for President of the United States.

Cullen subsequently wins election to a full term as Chief Judge.  While Chief Judge, he will preside over the 1913 impeachment trial of Governor William Sulzer.  Although Sulzer is convicted at that trial and removed from office, Cullen votes against conviction.

State Supreme Court Justice D. Cady Herrick, a Democrat, runs for Governor and is defeated by Republican Frank W. Higgins in a relatively close contest (813,264 votes for Higgins; 732,704 for Herrick).

William Edward Werner, a former Monroe County Judge and Supreme Court Justice from Rochester, is elected as an Associate Judge of the Court of Appeals.

The Constitution’s Judiciary Article is amended twice.  First, to authorize the Legislature to increase the number of Supreme Court Justices in a Judicial District not to exceed a certain proportion of the local population (one justice per 80,000 in the First and Second Judicial Districts [New York City]; one justice per 60,000 in other Districts).[178]  Second, to permit Justices of the Appellate Division, when not engaged in the performance of their appellate duties, to hold terms of Supreme Court outside the Judicial Department to which they have been designated.[179]

The first of these amendments gives the Legislature a power not theretofore possessed (the Constitution of 1846 had authorized the Legislature to increase the number of Supreme Court Justices in the Judicial District containing New York City, but not in any other District;[180] this authority was discontinued, however, under the new Judiciary Article adopted in 1869).

This first amendment also amends the Judiciary Article to authorize the Legislature to carve off a new Judicial District out of a portion of the existing Second Judicial District.[181]

[178] Const. (1894), Art. VI, §1 [amended, 1905].

[179] Ibid., Art. VI, §2 [amended, 1905].

[180] Const. (1846), Art. VI, §4.

[181] Const. (1894), Art. VI, §1 [amended, 1905].

At the 1906 annual meeting of the American Bar Association in St. Paul, Minnesota, Dean Roscoe Pound delivers a memorable speech in which he bemoans the archaic nature of court systems nationwide and stresses the need for restructuring state judiciaries to eliminate their multiplicity of courts.  Entitled “The Causes of Popular Dissatisfaction with the Administration of Justice”, this speech concludes that, as the twentieth century begins, American judicial systems have become “archaic” in three ways:

1. In their multiplicity of courts,
2. In their preservation of concurrent jurisdiction in their many courts, and
3. In their waste of judicial power.

The Legislature carves Westchester, Putnam, Dutchess, Orange, and Rockland Counties out of the Second Judicial District and designates them collectively as a new Ninth Judicial District.[182]

[182] L. 1906, c. 125.

New York City Magistrate Charles S. Whitman dismisses charges against a minor offender and works to break up the corrupt system that allows arresting police officers to split fees with bail bondsmen.

Governor Frank Higgins appoints Frank Harris Hiscock, a former Supreme Court Justice and Justice of the Appellate Division, Fourth Judicial Department, from Syracuse, as a temporary Associate Judge of the Court of Appeals.  Higgins subsequently is elected, in 1913, to a full term on the Court.  In 1916 he is elected Chief Judge of the Court.

Willard Bartlett, a Justice of the Appellate Division, Second Judicial Department, from New York City, is elected as an Associate Judge of the Court of Appeals.

The State’s voters approve a constitutional amendment eliminating the Legislature’s control over judicial salaries by fixing the salary of a Supreme Court Justice in the State Constitution.[183]  At the same time, the voters reject a second constitutional amendment that would have fixed the salary of a Court of Appeals Judge in the Constitution.

[183] Const. (1894), Art. VI, §12 [amended, 1909].

Supported by Tammany Hall boss, Charles F. Murphy, State Supreme Court Justice William Jay Gaynor wins the New York City mayoralty election as a Democrat, defeating Fusion Party candidate Otto T. Bannard and Independent Party candidate William Randolph Hearst.  Almost immediately, Mayor-elect Gaynor rails against a Court of Appeals’ decision that an 1899 law banning nightwork for women is unconstitutional because it deprives women of the liberty to work in factories.

In October, Governor Charles Evans Hughes appoints Frederick Collin, a former Mayor of Elmira from Chemung County, to fill a vacancy as an Associate Judge of the Court of Appeals.  A month later Collins wins election to a full term on the Court.

The voters reject two constitutional amendments that would have affected the Judiciary.  The first would have added Judges to the Kings County Court.  The second would have modified the powers of Justices of the Appellate Divisions.

The Hall of Records in New York City (later the site of Surrogate’s Court) is completed at 31 Chambers Street.  It is designed by Architect John R. Thomas.

The Legislature enacts a statute requiring political parties to select Supreme Court nominees (and many other nominees not running statewide) through direct primary elections.[184]

[184] L. 1911, c. 891.

The 1897 Court of Claims is abolished and replaced by a Board of Claims.[185]

[185] L. 1911, c. 856.

The Court of Appeals decides People ex rel. Swift v. Luce (204 NY 478).  This case sets forth the legal basis upon which private claims against the State may be brought.

The Legislature approves a statute that, subject to voter approval at a referendum, separates the Bronx from New York County and establishes it as the State’s 62nd county.[186]  This legislation adds the Bronx to the First Judicial District and, by so doing, includes it within the First Judicial Department.

[186] L. 1912, c. 548.

Inspired by growing concern that the State’s number of civil practice statutes had proliferated and grown inordinately complex, the Legislature directs the Board of Statutory Consolidation to prepare and report a plan for the classification, consolidation, and simplification of civil practice in the courts.[187]  The Board proceeds to recommend that the Legislature adopt a short practice act, and that the most important matters of practice and procedure be regulated by rules of civil practice to be drawn up and adopted by a convention of Appellate Division justices; that details of practice and procedure be left to court discretion; and that the Judiciary be officially charged with the supervision of procedure and with the responsibility for suggesting improvements to the Legislature when legislative action is necessary.

[187] L. 1912, c. 393.

William Herman Cuddeback, a practicing lawyer from Buffalo, is elected as an Associate Judge of the Court of Appeals.

John W. Hogan, a practicing lawyer from Syracuse, is elected as an Associate Judge of the Court of Appeals.

The voters approve an amendment to the Constitution that adds two Judges to the Kings County Court and authorizes the Legislature to create additional County Judges in other counties (one County Judge for each 200,000 people).[188]

[188] Const. (1894), Art. VI, §14 [amended, 1913].

Governor William Sulzer appoints Nathan L. Miller, a former State Comptroller, Supreme Court Justice, and Justice of the Appellate Division, Second Judicial Department, from Cortland County as an ex officio Associate Judge of the Court of Appeals.  Miller serves only briefly on the Court.  He is later President of the New York State Bar Association and, between 1921 and 1922, Governor of the State.

Governor Sulzer is impeached nine months after assuming office and, following a four-week trial before an impeachment court made up of the State Senate and the Judges of the Court of Appeals, he is removed from office for having “willfully, knowingly and corruptly” falsified records of campaign contributions and expenditures the previous year.

The Legislature establishes a commission to draft a new civil practice act.

Willard Bartlett, an Associate Judge of the Court of Appeals, is elected to succeed Edgar Montgomery Cullen as Chief Judge of the Court of Appeals.  Judge Cullen had reached the mandatory retirement age.

The Legislature enacts a statute relating to the Appellate Terms.[189]

[189] L. 1914, c. 349.

The Bronx officially becomes New York’s 62nd county.

The civil practice commission established the previous legislative session files its report and recommendations.

Governor Martin Glynn appoints Benjamin N. Cardozo, a Supreme Court Justice from New York City, to a temporary seat as an Associate Judge of the Court of Appeals.

Governor Glynn appoints William Butler Hornblower, a former President of the New York State Bar Association from New York City, as an Associate Judge of the Court of Appeals.  He serves for only five months, dying in June 1914.  Hornblower had previously been nominated by President Grover Cleveland to a seat as an Associate Justice of the United States Supreme Court, but his nomination was rejected by the Senate.

Governor Glynn appoints Samuel Seabury, a Supreme Court Justice from New York City, as an Associate Judge of the Court of Appeals.  Seabury had already won election to a full term on the Court at the 1914 General Election.

The Legislature enacts a statute making the Municipal Court of New York City a court of record.[190]

[190] L. 1915, c. 279.

The Board of Claims is abolished, and the Court of Claims is re-established.[191]

[191] L. 1915, cc 1 and 100.

Governor Charles Whitman appoints Cuthbert Pound, a Supreme Court Justice from Ithaca, as a temporary Associate Judge of the Court of Appeals.  In 1916, Pound will win election to a full term on the Court.  He will subsequently (in 1932) become Chief Judge of the Court.

A Constitutional Convention is held.  Its principal recommendations for the Judiciary, which, along with the rest of the Convention’s proposed new Constitution, later fail to secure the voters’ approval, include:

• Establishment of the Court of Claims and the Appellate Terms as permanent constitutional courts.
• A mandate for legislative enactment of a simplified civil practice code and periodic reexamination of that code by a specially selected State commission; a ban on legislative revision of the civil practice laws except upon recommendation of such a commission; and authority for the courts to alter civil practice rules.

The 1915 Constitutional Convention largely concentrates on issues of home rule, woman’s suffrage, and reorganization of the Judicial and Executive Branches.  It proposes 33 changes in the State Constitution, with the aim of updating the document to create a modern, efficient State government.  The delegates package all 33 changes into five separate proposals.  As noted, these five proposals all go down to defeat.  Some suggest that the voters objected not so much to the substance of the proposals as to the way they were packaged.  Indeed, many of the Convention proposals, although rejected by the voters in 1915, are adopted in succeeding years.

Court of Appeals Judge Samuel Seabury is soundly defeated by incumbent Governor Charles Whitman in the race for Governor.

Frank Harris Hiscock, an Associate Judge of the Court of Appeals, succeeds Willard Bartlett as Chief Judge of the Court of Appeals.  Bartlett had reached the mandatory retirement age.

Governor Charles Whitman appoints Benjamin N. Cardozo, a temporary Associate Judge of the Court of Appeals, to a seat on the Court vacated by the resignation of Judge Samuel Seabury.  Later in the year, Cardozo is elected to a full term on the Court as an Associate Judge.  Subsequently (in 1926), he will be elected as Chief Judge of the Court.  In 1932, Cardozo will be appointed to be a Justice of the United States Supreme Court by President Herbert Hoover.

Governor Whitman appoints Chester Bentine McLaughlin, a former Essex County Surrogate, Supreme Court Justice, and Justice of the Appellate Division, First Judicial Department, from Essex County, as an Associate Judge of the Court of Appeals.  Later in the year, McLaughlin is elected to a full term on the Court.

Governor Whitman appoints Frederick Evan Crane, a former Kings County Judge and Supreme Court Justice from New York City, as a temporary Associate Judge of the Court of Appeals.  Crane is subsequently (in 1920) elected to a full term on the Court.  In 1934, he will be elected Chief Judge of the Court, and, in 1938, he will serve as President of the New York State Constitutional Convention held in that year.

The voters reject an amendment to the Constitution that would have permitted the Legislature to fix the compensation of Court of Appeals Judges.

Governor Alfred E. Smith appoints Abram Elkus, a former United States Ambassador to the Ottoman Empire from New York City, as an Associate Judge of the Court of Appeals.

The Legislature enacts a Court of Claims Act setting forth statutory procedures for the Court of Claims[192] and a Surrogate’s Court Procedure Act.[193]

[192] L. 1920, c. 922.

[193] L. 1920, c. 928.

The Legislature also enacts a Civil Practice Act along with Rules of Civil Procedure adopted by a statutorily established convention representing Bench and Bar.[194]  Control over the rules is given to Appellate Division Justices, a majority of whom, by joint order of the four Presiding Justices, may adopt, amend, or rescind any rule not inconsistent with any statute.  These rules supersede previous general rules of practice.

[194] L. 1920, c. 925.

Emory Albert Chase, a former Supreme Court Justice and Justice of the Appellate Division, Third Judicial Department, from Greene County, is elected as an Associate Judge of the Court of Appeals.

The Legislature establishes a special convention devoted to evaluation of amendments to the Judiciary Article of the Constitution.[195]  The delegates to this convention consist of 14 judges, nine practicing lawyers, six members of the Legislature (three from the Senate and three from the Assembly), and the State Attorney General.  Court of Appeals Associate Judge Cuthbert Pound is elected by the delegates to serve as chair of the convention.

[195] L. 1921, c. 348.

Governor Charles Whitman appoints William Shankland Andrews, a Supreme Court Justice from Syracuse, as an Associate Judge of the Court of Appeals.  Later in the year, Andrews is elected to full term on the Court.

State voters approve an amendment to the Constitution establishing Children’s Courts and Domestic Relations Courts.[196]  This amendment incorporates, in constitutional text, pre-existing statutory authority providing that, whenever a child is committed to an institution or placed in a person’s custody, it shall be done, whenever practicable, so that the institution or person is of the same religious persuasion as the child.

[196] Const. (1894), Art. VI, §18 [amended, 1921].

The Legislature enacts a statute requiring political parties to select candidates for the Supreme Court by a convention of delegates elected by party members.[197]

[197] L. 1921, c. 479.

In January, the Judiciary convention established in 1921 makes its report and recommendations, which include:

• Addition of a constitutional provision vesting the judicial power of the State in the courts.  Although the State Constitution had long expressly vested the State’s legislative and executive powers in the Legislature and the Governor, respectively, there was no comparable provision affecting the Judiciary.  Likely this was because, when the State’s early Constitutions were drafted, there was no Court of Appeals (the Senate then serving as the State’s court of last resort).  It was not until 1846 that the Constitution was amended to establish the Court of Appeals, and no effort was made at the time to fill the gap regarding vesting the State’s judicial power in the courts.  An effort is made in 1922 because of prevailing concerns that bureaucratic governmental growth and, with it, a proliferation of agencies within the executive branch performing what historically have been regarded as judicial functions, are a threat to the separation of powers.
• A grant of authority to the Appellate Divisions to fix the times and places for holding terms of Supreme Court.
• Provision of clear constitutional authority for establishment of the Appellate Terms.
• A grant of authority to the Court of Appeals to designate a Supreme Court Justice to serve on the Court during the temporary absence or inability of one of its Judges to act.
• 14-year terms of office for New York City Surrogates.
• Abolition of the County Courts in Kings, Bronx, Queens, and Richmond Counties; and extension of the jurisdiction of the Court of General Sessions for the City and County of New York, and that of the New York City Court, citywide.
• Provision that, in order for the Legislature to approve revisions of the State’s civil practice rules, a majority of the Judges of the Court of Appeals and a majority of the Justices of the Appellate Divisions must first certify to their necessity, or, without such certification, that any proposed revision to the rules of civil procedure must be published and then passed by the Legislature at its succeeding session.

The Legislature enacts the Children’s Court Act, which applies to those counties in which separate Children’s Court parts are not established (i.e., counties outside New York City).[198]

[198] L. 1922, c. 547.

The voters again reject an amendment to section seven of Article VI of the Constitution that would have fixed the salary of a Court of Appeals Judge at $17,500 per year.

Irving Lehman, a Supreme Court Justice from New York City, is elected as an Associate Judge of the Court of Appeals.  Subsequently (1939), Lehman will be elected Chief Judge of the Court.

Legislation similar to the 1922 Children’s Court Act is enacted for New York City.[199]

[199] L. 1924, c. 254.

State voters approve a new Judiciary Article for the Constitution (along with a revised Article five of the Constitution, incorporating many of the proposals offered by the 1915 Constitutional Convention for government reorganization).  The provisions of this new Judiciary Article are drawn largely from the recommendations of the Judiciary convention of 1921.  They include:          

• Removal of constitutionally fixed judicial pay levels combined with provision for judicial pay to be set by the Legislature.[200]
• Establishment of the Appellate Term as a permanent constitutional court.[201]
• Change in the limitation on the number of Supreme Court Justices that may be established by the Legislature in a Judicial District.[202]
• Increase in the number of permanent Justices of the Appellate Division, Second Department, to seven.[203]
• Authority for the Court of Appeals to designate a Supreme Court Justice to serve on the Court during the temporary absence or inability of one of its Judges to act.[204]
• Modification of the Court of Appeals’ jurisdiction.[205]
• Increase in the civil jurisdictional cap for County Court to $3,000.  Further, the Governor is authorized to transfer a County Judge between counties to act in cases of death, disability, or other absence of a local County Judge where there is no Special County Judge.[206]
• Expansion of the City Court of New York, originally established to sit only in New York and Bronx Counties, to sit in all counties in the City.[207]  Judges of the Court are required to reside in the county where they are elected to serve.

[200] Const. (1925), Art. VI, §19.

[201] Ibid., Art. VI, §3.

[202] Ibid., Art. VI, §1.

<[203] Ibid., Art. VI, §2.

[204] Ibid., Art. VI, §5.

[205] Ibid., Art. VI, §7.

[206] Ibid., Art. VI, §11.

[207] Ibid., Art. VI, §15.

Benjamin Nathan Cardozo, an Associate Judge of the Court of Appeals, is elected to succeed Frank Harris Hiscock as Chief Judge.  Hiscock had reached the mandatory retirement age.

Henry Theodore Kellogg, a Justice of the Appellate Division, Third Judicial Department, from Plattsburgh, is elected as an Associate Judge of the Court of Appeals.

The New York County Courthouse at 60 Centre Street is completed.

Governor Alfred E. Smith appoints John Francis O’Brien, a lawyer from New York City, as an Associate Judge of the Court of Appeals.  Later in the year, O’Brien is elected to a full term on the Court.

Irving Hubbs, the Presiding Justice of the Appellate Division, Fourth Judicial Department, from Pulaski, is elected as an Associate Judge of the Court of Appeals.

The Legislature broadly waives the State’s historic tort immunity.[208]

[208] L. 1929, c. 467.

State voters approve a constitutional amendment authorizing the Legislature to transfer the criminal jurisdiction of Justices of the Peace to other inferior court judges.[209]

[209] Const. (1925), Art. VI, §17 [amended, 1929].

The Legislature establishes the Commission on the Administration of Justice.[210]  In a series of reports over the next eight years, the Commission recommends more centralized control of the courts and creation of a statewide Judicial Council to collect information and make recommendations.

[210] L. 1930, c. 727.

Supreme Court Justice Joseph Force Crater disappears.  Crater, a product of Tammany Hall, had been appointed to fill a vacancy on the Supreme Court by then-Governor Franklin Roosevelt the previous April.  Prior to his appointment, Crater had been appointed to administer the affairs of a bankrupt hotel on the lower east side of New York City that had been appraised at $1.2 million.  In that role, he arranges for its sale for $75,000 to the American Bond and Mortgage Company, whose officers then sell it to New York City for almost a million dollars — to be used as the site for a planned housing project.  In the wake of his disappearance, all manner of sordid facts about his finances and private life emerges, assuring his celebrity ever after.

Hon. Edward R. Finch, Acting Presiding Justice of the Appellate Division, First Department, orders an investigation of New York’s Magistrates’ Courts.  Retired Court of Appeals Judge Samuel Seabury is appointed to lead the investigation.

This is one of three investigations that Judge Seabury is asked to lead.  Governor Franklin D. Roosevelt also names him to head up an investigation of Manhattan DA Thomas Crain’s office and the Legislature calls upon him to lead a general investigation of New York City government.

In the wake of this last investigation, New York City Mayor Jimmy Walker is forced to resign.

The voters reject a proposed constitutional amendment that would have authorized the Legislature to subdivide the existing Second Judicial District into two Judicial Districts.

Governor Roosevelt appoints Cuthbert Pound, an Associate Judge of the Court of Appeals, to succeed Benjamin Cardozo as Chief Judge of the Court of Appeals.  President Herbert Hoover had named Cardozo to a seat on the United States Supreme Court.  Later in the year, Pound wins election to a term as Chief Judge.

Governor Roosevelt appoints Leonard Crouch, a Justice of the Appellate Division, Fourth Judicial Department, from Syracuse, as an Associate Judge of the Court of Appeals.  Crouch subsequently (in 1933) is elected to a full term on the Court.

Democrats nominate Surrogate John P. “Boo Boo” O’Brien to run in a special election to fill the unexpired term of former Mayor Walker.  He wins easily.

The New York City Domestic Relations Court is established.[211]  This Court is created through legislative exercise of a power granted under the Constitution’s new Judiciary Article as approved in 1925.  That Article expressly authorizes the Legislature to establish Children’s Courts and Domestic Relations Courts as separate parts of existing courts or as entirely new courts, and to confer on these bodies equity and such other jurisdiction “as may be necessary for the correction, protection, guardianship and disposition of delinquent, neglected or dependent minors, and for the punishment and correction of adults responsible for contributing to such delinquency, neglect or dependency, and of all persons legally chargeable with the support of a wife or children who abandon or neglect to support either.”

[211] L. 1933, c. 482.

A Committee on Court Rules of the Association of the Bar of the City of New York issues a special report on the extension of the courts’ rule-making power.  This report calls for a recasting of many Civil Practice Act sections as Rules of Practice — thus affording the Judiciary greater opportunity to control procedure.

The Legislature establishes the Judicial Council as a permanent research body.[212]  The Council becomes active in drafting statutory procedural changes and rule changes for the courts.

[212] L. 1934, c. 128.

Frederick Evan Crane, an Associate Judge of the Court of Appeals, is elected to succeed Cuthbert Winfred Pound as Chief Judge of the Court of Appeals.  Pound had reached the mandatory retirement age.

Governor Herbert Lehman appoints John Loughran, a Supreme Court Justice from Kingston, as an Associate Judge of the Court of Appeals.  Later in the year, Loughran is elected to a full term on the Court.  Subsequently (in 1945), Loughran will become Chief Judge of the Court.

Edward Ridley Finch, a former State legislator and Presiding Justice of the Appellate Division, First Judicial Department, from New York City, is elected as an Associate Judge of the Court of Appeals.

New York City Mayor Fiorella H. LaGuardia appoints Justine Wise Polier to the Domestic Relations Court in New York City.  She is the first female judge in New York State history.

Harlan Watson Rippey, a former Supreme Court Justice and Federal District Court Judge from Monroe County, is elected as an Associate Judge of the Court of Appeals.

The voters reject two proposed amendments to the Constitution’s Judiciary Article. The first would have increased the civil monetary jurisdiction of the City Court of New York City and extended its operation beyond New York and Bronx Counties to the entirety of the City.  The second would have continued the jurisdiction and powers of the Municipal Court of New York City while permitting the Legislature to augment them.

A Constitutional Convention is held.  It enjoys only limited success, with many of its proposals, including a series of revisions to the Judiciary Article of the Constitution, being rejected by the voters.  These revisions would have been substantial, and would have included:

• Introduction of a ten Judicial District system.
• Amendment of the jurisdictional grant to the Court of Appeals.
• Introduction of a new system for judicial discipline under which the Court of Appeals would be empowered to remove judges of the State’s major courts for “cause” and to retire them for “permanent mental or physical disability preventing the performance of . . . judicial duties.”
• Expansion of the General Sessions Courts in New York City.
• Legislative erection of a system of local inferior courts.
• Establishment of the Court of Claims as a constitutional court.

The 1938 Constitutional Convention is presided over by Chief Judge Frederick Evan Crane of the Court of Appeals.  Held during the Great Depression, the Convention delegates are greatly influenced by New Deal efforts going on in Washington to give the State Legislature more power to engage in social programs.  Delegates are very concerned with the way in which their work product will be packaged for presentation to the voters.  Ultimately, the Convention’s 58 proposed amendments are put into nine separate questions for presentation on the ballot.  More controversial changes are set forth separately.  Of the nine, six are handily approved; three are rejected.  Among the three rejections:  one that would have permitted extensive review of all administrative action.

New York City Mayor Fiorella LaGuardia appoints Jane Bolin to the New York City Domestic Relations Court.  She is the first African-American female judge of any court in the United States and she remains a judge for 40 years (continuing in service even after the Domestic Relations Court merges into the New York City Family Court in 1962).

Irving Lehman, an Associate Judge of the Court of Appeals, is elected to succeed Frederick Evan Crane as Chief Judge of the Court of Appeals.  Crane had reached the mandatory retirement age.

Governor Herbert Lehman appoints Albert Conway, a Justice of the Appellate Term, from New York City, as an Associate Judge of the Court of Appeals.  Later that year, Conway wins election to a full term on the Court.  Subsequently (in 1954), Conway will be elected Chief Judge of the Court.

Governor Herbert Lehman appoints Charles Sears, the Presiding Justice of the Appellate Division, Fourth Judicial Department, from Buffalo, as an Associate Judge of the Court of Appeals.  Sears serves only briefly.

Governor Lehman appoints Edmund Harris Lewis, a Justice of the Appellate Division, Fourth Judicial Department, from Onondaga County, as an Associate Judge of the Court of Appeals.  Later in the year, Lewis is elected to a full term on the Court.  Subsequently (in 1953), Lewis will become Chief Judge of the Court.

Charles Desmond, a Supreme Court Justice from Eden, is elected as an Associate Judge of the Court of Appeals.  Subsequently (in 1960), Desmond will become Chief Judge of the Court.

Governor Thomas Dewey appoints Thomas Day Thacher, a former Federal District Court Judge, Solicitor General of the United States, and New York City Corporation Counsel from New York City, as an Associate Judge of the Court of Appeals.  Later in the year, Thacher is elected to a full term on the Court.

The voters approve an amendment to the Constitution making technical changes in the jurisdiction of the Court of Appeals.[213]

[213] Const. (1925), Art. VI, §7 [amended, 1943].

Marvin Rood Dye, a Court of Claims Judge from Rochester, is elected as an Associate Judge of the Court of Appeals.

Governor Thomas Dewey appoints John T. Loughran, an Associate Judge of the Court of Appeals, to succeed Irving Lehman as Chief Judge of the Court.  Lehman had died in office.  The following year (in 1946), Loughran is elected to serve as Chief Judge for a full term.

Governor Dewey appoints George Medalie, a former United States Attorney from New York City, as an Associate Judge of the Court of Appeals.  His service on the Court is brief.

The Court of Appeals decides Kuhn v. Curran (294 NY 207), holding that, since explicit legislative authority for increasing the number of judicial districts dropped out of the Constitution in 1867 and had not since been restored despite several amendments to the Constitution’s provision regarding the number of districts, the Legislature’s authority to alter the judicial district structure does not include authority to increase the number of such districts.

Governor Thomas Dewey appoints Stanley Fuld, a lawyer from New York City, as an Associate Judge of the Court of Appeals.  Later in the year, Fuld is elected to a full term on the Court.  Subsequently (in 1967), Fuld will become Chief Judge of the Court.

The voters approve two amendments to the Constitution.  One adds a new provision relating to removal or retirement of judges by a newly created Court on the Judiciary.[214]  The other carves a new Judicial District out of the existing Second Judicial District.[215]

The new Court on the Judiciary is made up of the Chief Judge and Senior Associate Judge of the Court of Appeals and one Appellate Division Justice from each Judicial Department.  It is authorized to order removal or retirement of Judges of the Court of Appeals, Supreme Court Justices, Court of Claims Judges, Surrogates, Special Surrogates, County Court Judges (including a Special County Judge), Judges of the Court of General Sessions of New York County, and Justices of a City Court of Record.  Removal must be “for cause” and retirement must be “for mental or physical disability preventing the proper performance of [the judge’s] judicial duties.”

Prior to this time, judges of the major trial and appellate courts could only be removed from office by the Legislature.

[214] Ibid., Art. VI, §9-a [added, 1947].

[215] Ibid., Art. VI, §1 [amended, 1947].

Governor Thomas Dewey appoints Bruce Bromley, a lawyer from New York City, as an Associate Judge of the Court of Appeals.  He serves only briefly.

Charles Froessel, a Supreme Court Justice from New York City, is elected as an Associate Judge of the Court of Appeals.

Charlotte Smallwood, of Wyoming County, becomes the first woman in New York to be elected to the office of District Attorney.

The Court of Claims becomes a constitutional court.[216]

[216] Ibid., Art. VI, §23 [amended, 1950].

As the new decade opens, there is growing public concern for greater trial delays that are plaguing the courts.  It is reported that the time required for a tort case to reach jury trial in many counties has grown substantially in the years since the end of World War II.[217]  Experts point to an exponentially greater use of automobiles, and a resulting proliferation of accidents, as a major reason for this growth.[218]  To counter this calendar congestion, several constitutional proposals to consolidate the courts are introduced in the Legislature in 1950.  None passes.

[217] See Preliminary Report of the Temporary Commission on the Courts to the Governor and the Legislature, March 1954.

[218] Galie, Peter J., Bopst, Christopher, and Benjamin, Gerald, New York’s Broken Constitution, SUNY Press, 2016, p. 85.

The voters approve three constitutional amendments.  They include:

1. Authorization for appeals by permission to the Court of Appeals from non-final orders in proceedings by or against public officers;[219]
2. An increase in the monetary jurisdiction of the City Court of New York City;[220] and
3. Permission for Judges and Justices to serve in the armed forces.[221]

[219] Const. (1925), Art. VI, §7 [amended, 1951].

[220] Ibid., Art. VI, §15 [amended, 1951].

[221] Ibid., Art. VI, §19 [amended, 1951].

New York enacts section 52 of the Civil Rights Law, which prohibits the televising, broadcasting, or taking of motion pictures of certain proceedings, including court proceedings, “in which the testimony of witnesses by subpoena or other compulsory process is or may be taken.”[222]  This effectively forecloses any audio-visual broadcast of court trials in New York.

[222] L. 1952, c. 241.

Governor Thomas Dewey, in his annual message to the Legislature, calls for creation of a special commission to study the State’s judicial system and to prepare recommendations for modernizing the administration, procedure, and structure of the courts. In response to Governor Dewey’s call, the Legislature establishes an 11-member Temporary Commission on the Courts to make a comprehensive study of the judicial system, including its administration, structure, procedures, and personnel.[223]  This Commission becomes known as the Tweed Commission, after its chair, prominent New York City lawyer Harrison Tweed.  It is charged with filing a report by February 1954.

[223] L. 1953, c. 591.

Governor Thomas Dewey appoints Edmund Harris Lewis, an Associate Judge of the Court of Appeals, to succeed John T. Loughran as Chief Judge of the Court.  Loughran had died in office.  Later in the year, Lewis is elected to a full term of office.

Governor Thomas Dewey appoints John Van Voorhis, a Justice of the Appellate Division, First Judicial Department, from Rochester, as an Associate Judge of the Court of Appeals.  The following year, Van Voorhis is elected to a full term of office.

The voters approve a constitutional amendment to increase the civil monetary jurisdiction of County Courts outside New York City from $3,000 to $6,000.[224]  They also approve amendments relating to the temporary assignment of judges between courts in New York City.[225]  These amendments are part of an effort to combat increasing calendar congestion in Supreme Court.

[224] Const. (1925), Art. VI, §11 [amended, 1953].

[225] Ibid., Art. VI, §§1, 2, 16 [amended, 1953], and 14-a, 15-a [added, 1953].

The Tweed Commission issues its first report, identifying the various areas of the Judicial system to which it is giving its attention.

The Legislature continues the Tweed Commission for another year.[226]

[226] L. 1954, c. 4.

Albert Conway, an Associate Judge of the Court of Appeals, is elected to succeed Edmund Harris Lewis as Chief Judge of the Court of Appeals.  Lewis had reached the mandatory retirement age.

Adrian Burke, a former Corporation Counsel of New York City, is elected as an Associate Judge of the Court of Appeals.

The Tweed Commission issues its second report.  In this report, the Commission recommends legislation to establish a Judicial Conference for the State, to create the position of State Administrator for the courts, and to create Departmental Committees in each Judicial Department.  Together, the Judicial Conference, the State Administrator, and the several Departmental Committees would be tasked with various consultative functions intended to improve court operations.

In June 1955, a subcommittee of the Tweed Commission issues its proposal for a “Simplified State-wide Court System”.  This proposal calls for establishment of a court system consisting of five courts:

1. A Supreme Court of Appeals (a court of last resort consisting of seven judges elected statewide),
2. An Appellate Court (to replace the Appellate Divisions as the State’s court of intermediate appellate resort, to be organized in the same four Judicial Department structure then existing, and to be presided over by specially-designated trial court judges),
3. A Superior Court (merging the judges and jurisdiction of the Supreme Court, the Court of Claims, and various other lower courts, and divided into subordinate divisions, including criminal, civil, youth, probate, and family and children’s divisions),
4. A District Court (to be a localized trial court organized on a county-wide basis with limited civil and criminal jurisdiction), and 
5. A Magistrates Court (another localized court, to operate in both New York City and outside the City where it would exercise traffic jurisdiction and low-level criminal jurisdiction).

The Tweed Commission appoints the Advisory Committee on Practice and Procedure to study New York civil practice.

The Legislature continues the Tweed Commission for another year.[227]

[227] L. 1955, c. 6.

The Legislature establishes the Judicial Conference to serve as an advisory body of trial and appellate judges from across the State, as well as the office of State Administrator.[228]  The Judicial Conference is to be chaired by the Chief Judge of the State and include as members the Presiding Justices of each of the four Appellate Divisions and one trial Supreme Court Justice from each Judicial Department selected by the trial Justices of the Department.  A successor to the Judicial Council that had been established in 1934, the Judicial Conference is vested with a wide array of research, advisory, and consultative powers in relation to the functioning of the courts.  The Conference is further empowered to select a State Administrator to act as its secretary and to assist it in discharge of its duties.

The Legislature also directs the Presiding Justice of each Appellate Division to establish a departmental committee for court administration for his or her Judicial Department.[229]  Consisting of the Presiding Justice and other judges and justices in the Department for which it is established, each departmental committee will serve as a regional adjunct to the Judicial Conference and assist it in discharge of its duties.

[228] L. 1955, c. 869.

[229] Ibid.

The voters reject two amendments to the Constitution.  The first would have permitted the Governor, upon receipt of a certificate from the Presiding Justice of an Appellate Division, to appoint a temporary judge to hold County Court outside New York City for renewable periods of up to 90 days not exceeding one year.  The second would have permitted the Governor, upon receipt of a certificate from the Presiding Justice of an Appellate Division, to appoint a temporary judge to hold certain courts in New York City for renewable periods of up to 90 days not exceeding one year.

The Tweed Commission issues its third report.

The Legislature continues the Tweed Commission for another year.[230]

[230] L. 1956, c. 353.

Following public hearings in 1955, the Tweed Commission modifies the earlier report of its subcommittee on modernization and simplification of the court structure.

The Tweed Commission issues its fourth report.  Principal among its recommendations is the adoption of a new Judiciary Article in the Constitution establishing a simplified statewide court system with general administrative power over the Judiciary to be lodged in a Judicial Conference.  The proposed court system would consist of:

• The existing appellate court structure (i.e., a Court of Appeals, acting as the court of last resort, and an Appellate Division in each of four Judicial Departments, as an intermediate appellate court).
• A trial court structure including:  (1) in New York City, a Supreme Court with general and unlimited civil and criminal jurisdiction along with jurisdiction over Surrogate’s and Family matters, and a General Court with limited civil and criminal jurisdiction; and (2) outside the City, a Supreme Court with general and unlimited civil jurisdiction, a County Court with unlimited criminal jurisdiction, limited civil jurisdiction and jurisdiction over Surrogate’s and Family matters, and a Magistrates Court with limited civil and criminal jurisdiction to serve each town and village or a District Court with like jurisdiction to serve in counties as determined by the Legislature.

The Tweed Commission issues its fourth report.  Principal among its recommendations is the adoption of a new Judiciary Article in the Constitution establishing a simplified statewide court system with general administrative power over the Judiciary to be lodged in a Judicial Conference.  The proposed court system would consist of:

• The existing appellate court structure (i.e., a Court of Appeals, acting as the court of last resort, and an Appellate Division in each of four Judicial Departments, as an intermediate appellate court).
• A trial court structure including:  (1) in New York City, a Supreme Court with general and unlimited civil and criminal jurisdiction along with jurisdiction over Surrogate’s and Family matters, and a General Court with limited civil and criminal jurisdiction; and (2) outside the City, a Supreme Court with general and unlimited civil jurisdiction, a County Court with unlimited criminal jurisdiction, limited civil jurisdiction and jurisdiction over Surrogate’s and Family matters, and a Magistrates Court with limited civil and criminal jurisdiction to serve each town and village or a District Court with like jurisdiction to serve in counties as determined by the Legislature.

The Tweed Commission’s reform plan is embodied in concurrent resolutions presented to the Legislature.

The Legislature continues the Tweed Commission for another year.[231]

[231] L. 1957, c. 618.

The State’s voters reject a ballot proposition calling for a new Constitutional Convention.

The Tweed Commission issues its final report.  Among its proposals are calls for:

• Placement of full administrative supervision and control of the courts with the Judicial Conference and the four Appellate Divisions.
• A series of court mergers, as follows:  (1) the Court of Claims with the Supreme Court; (2) the County Court, Surrogate’s Court, and Children’s Court into a single County Court; and (3) New York City’s lower courts into a General Court for the City.
• Continuation of the Nassau County District Court.
• Preservation of the existing City, Town, and Village Court structure outside New York City, adding only the requirement that lay judges complete a training program before they can hold court.
• Establishment of a separate New York City Family Court.

The Tweed proposals are presented to the Legislature where they narrowly fail to secure approval (passing the Senate but losing by one vote in the Assembly).

In April, following the close of the 1958 legislative session, and much public outcry at the failure of the Tweed proposals to pass, Governor Averell Harriman asks the Judicial Conference to “study and evaluate the court structure of the State and formulate a plan for court reorganization and administration for submission to the 1959 Legislature.”  On November 10, 1958, the Judicial Conference publishes its recommendations, which, borrowing heavily upon the Tweed Commission’s work, include calls for:

• Merger into the Supreme Court of the Court of Claims and the County Courts in New York City plus the Court of General Sessions in New York County.  Successors in office to incumbent judges of the merged courts are to be elected.
• Establishment of a statewide Family Court.  Outside New York City, judges of the Family Court are to be elected; in New York City, such judges are to be appointed by the Mayor.
• Merger of New York City’s lower courts into citywide courts of civil and criminal jurisdiction, respectively.  Judges of the former court of civil jurisdiction are to be elected within counties from districts established by the Legislature.  Judges of the former court of criminal jurisdiction are to be appointed by the Mayor.
• Preservation of upstate County Courts, albeit with elimination of special county judges and part-time judges.  Also, preservation of Surrogates’ offices.
• Abolition of the Justice Courts with their replacement, in each county, by a District Court.

The Legislature gives first passage to a constitutional amendment proposed by newly-elected Governor Rockefeller to establish a new Judiciary Article. 

If passed a second time by the Legislature and adopted by the State’s voters, this constitutional amendment would introduce a new administrative organization for the courts (one that, for the first time in New York, would provide for regional administration of the trial courts by the Appellate Divisions and statewide policy-making by the State’s Chief Judge and the Presiding Justices of the four Appellate Divisions, who together would constitute an Administrative Board of the Judicial Conference); merger of New York City’s lower courts into newly-created New York City Civil and Criminal Courts; and merger of the Domestic Relations Court and Children’s Courts into a single Family Court in New York City and county-wide Family Courts outside the City.

Passage of the amendment is quite a coup for the new Governor – representing the first real reorganization of the State’s court system in 112 years (i.e., since the 1846 Constitution ushered in a new Judiciary Article).  The amendment passes the Republican-controlled Legislature over the near-solid opposition of the Legislature’s Democrats.

Charles Stewart Desmond, an Associate Judge of the Court of Appeals, is elected to succeed Albert Conway as Chief Judge of the Court.  Conway had reached the mandatory retirement age.

The Legislature once again gives first passage to a constitutional amendment providing for a new Judiciary Article.  This amendment is identical in all respects to the amendment passed in 1959 except that it includes provision for an Eleventh Judicial District.  The 1959 amendment had failed to provide for establishment of this District.

Governor Nelson Rockefeller appoints Sydney Foster, the Presiding Justice of the Appellate Division, Third Judicial Department, from Sullivan County, as an Associate Judge of the Court of Appeals.  Later in the year, Foster is elected to a full term of office.

The Legislature gives second passage to the constitutional amendment proposing a new Judiciary Article approved in 1960, directing that it be put before the voters at the November general election.

The Legislature, by concurrent resolution adopted in March, establishes a Joint Legislative Commission on Court Reorganization chaired by State Senator Daniel G. Albert (Suffolk County).  This Commission is charged with drafting legislation to implement the court reform constitutional amendment to be put before the voters at the 1961 general election.

The Legislature establishes a Temporary State Commission on Revision of the Penal Law and Criminal Code.[232]  The Commission is charged with preparing a comprehensive overhaul and modernization of the State’s Penal Law and its Code of Criminal Procedure.  Glens Falls Assemblyman Richard J. Bartlett is named to be its chair.

[232] L. 1961, c. 346.

The Legislature establishes the Temporary State Commission on the Modernization, Revision, and Simplification of the Law of Estates.[233]  The Commission is charged with conducting a comprehensive study of existing statutory law relating to estates and their administration for the purposes of correcting defects and modernizing, simplifying, and improving law and practice.  John D. Bennett, retired Surrogate of Nassau County, is named Chair.  Known as the Bennett Commission, the Commission operates from 1962 to 1967.

[233] L. 1961, c. 731.

In November 1961, the State’s voters approve adoption of the court reform constitutional amendment by nearly a five to one margin.  The amendment carries by a plurality of 1.8 million votes — the largest in the State’s history for a constitutional amendment.

The Joint Legislative Commission on Court Reorganization issues its first two reports, covering judicial administration and Family Court, respectively.  The former calls for legislation to give effect to a new system for the administration of the courts under the aegis of an Administrative Board of the Judicial Conference, the Appellate Divisions, and a Judicial Conference.  Among the most significant elements of this new system, which are to be set out in a new Article 7-A of the State’s Judiciary Law:

• The Appellate Divisions, which, under the new Judiciary Article, are to supervise the administration and operation of the trial courts, would be authorized to designate Administrative Judges to supervise courts on their behalf.
• Each Appellate Division would also be authorized to appoint Departmental Directors of Administration to provide professional and staff assistance to the Appellate Division and to the Administrative Judges it has designated.
• The Administrative Board of the Judicial Conference would have the power to appoint a State Administrative Judge to discharge such duties as the Board would delegate.
• The definition of the administrative powers of the Administrative Board and a grant of authority to the Board to prescribe how and to what extent those powers are to be used.
• The composition and powers of the Judicial Conference.

The new constitutional Judiciary Article, approved by the voters in 1961, takes effect on September 1, 1962.

The Legislature approves legislation recommended by the Joint Legislative Commission that includes:

• Comprehensive recodification of the State’s civil practice statutes into a new Civil Practice Law and Rules (CPLR).[234]
• A new Family Court Act.[235]
• A new New York City Civil Court Act and related statutes.[236]
• A new New York City Criminal Court Act and related statutes.[237]
• A new Article 7-A for the Judiciary Law implementing the new constitutional formulation for administration of the courts.[238]

[234] L. 1962, c. 308.

[235] L. 1962, c. 686.

[236] L. 1962, c. 693.

[237] L. 1962, c. 697.

[238] L. 1962, cc 684, 685.

John Scileppi, a Supreme Court Justice from New York City, is elected as an Associate Judge of the Court of Appeals.

The CPLR takes effect on September first.  It replaces the Code of Civil Procedure (which had also been known as the Throop Code).  The CPLR is largely the product of the Advisory Committee on Practice and Procedure.

Francis Bergan, the Presiding Justice of the Appellate Division, Third Judicial Department, from Albany, is elected as an Associate Judge of the Court of Appeals.

Four years following establishment of the Temporary Commission on Revision of the Penal Law and Criminal Code, the Legislature enacts its proposals into law as a new Penal Law.[239]  This marks the first overall revision in the State’s penal laws since 1881.

[239] L. 1965, c. 1030.

The voters reject constitutional amendments that

1. Would have authorized the Legislature to fix the terms of Town Justices at beyond four years, and 
2. Would have permitted the certification of Surrogates in New York City, on Long Island, and in Westchester County, upon reaching age 70, for continued judicial service as Supreme Court Justices until they reach age 76.

The Democratic Party, in the wake of Lyndon Johnson’s landslide victory in the 1964 presidential election, controls the State Legislature and Democratic legislators promptly put the question whether there should be a new Constitutional Convention on the ballot at the State’s November general election.  The voters agree to the call for a Convention.  It is thought that two of the major reasons for the voters’ approval are

1. Widespread dissatisfaction with the State’s outmoded court system (substantially unchanged in over 100 years), and
2. Gross under-representation of new suburban areas in both houses of the Legislature.  The Democrats garner a majority of the delegate seats, and they control the Convention.[240]

[240] See generally Galie, Peter J., Ordered Liberty:  A Constitutional History of New York, chapter 14 [pp 307 et seq].

Two constitutional amendments affecting the courts are put before the voters.  The first, which would permit Court of Appeals Judges, upon designation by their colleagues on the Court, to remain in service on the Court after reaching the mandatory retirement age of 70, is narrowly defeated (by just 6,000 votes out of 3.5 million cast).  The second, which would permit Justices of the Appellate Division to remain in service on that Court after reaching mandatory age 70 retirement, is approved.[241]

[241] Judiciary Article (1962), §25 [amended, 1966].

The Legislature enacts the Surrogate’s Court Procedure Act, effective September 1, 1967.[242]  It replaces the Surrogate’s Court Act.

[242] L. 1966, c. 953.

Stanley H. Fuld, an Associate Judge of the Court of Appeals, is elected to succeed Charles Desmond as Chief Judge of the Court.  Desmond had reached the mandatory retirement age.

A Constitutional Convention is held.  The delegates propose a new Constitution, which would make the following changes in the Judiciary:

• Court of Appeals.  It would authorize the Court to exercise exclusive original jurisdiction of any action contesting the validity of a redistricting plan.
• Appellate Divisions.  It would authorize the Legislature to divide the State into between five and seven Judicial Departments.  Also, it would introduce:  (1) a requirement that a majority of the Justices of an Appellate Division reside in the Judicial Department in which the Court sits; (2) authorization for the Court of Appeals to permit an Appellate Division to sit in panels of three; and (3) a requirement that the Legislature fix the number of Justices in each Department at between five and eight, plus the Presiding Justice.
• Number of judgeships.  It would authorize the Court of Appeals to create additional trial court judges by certification filed with the Legislature by February first of a year, subject to legislative abrogation on or before the following April first.
• County Court.  It would authorize the Legislature to abolish the County Court in any county and to transfer the County Court Judge and his or her jurisdiction to any appropriate court (except for jurisdiction over felonies, which could only be transferred to the Supreme Court).
• Lower Courts.  It would extend the District Court system into all counties outside New York City, disestablish the Town, Village, and City Court systems subject to legislative approval of their continuation as courts with jurisdiction over only vehicle and traffic matters and local ordinance violations.
• Court of Claims.  It would authorize the Court of Claims to hold jury trials under limited circumstances.
• Court Funding.  It would require a State takeover of the cost of court operations over a ten-year period.
• Court Management.  It would institute centralized management of the courts under the supervision of a Chief Administrator of the Courts appointed by the Court of Appeals, together with policy making by the Court of Appeals.
• Judicial power.  It would expressly vest the State’s judicial power in a Unified Court System.