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 The Green Bag

Vol. II.

No. 8.

BOSTON.

August, 1890

THE NEW YORK COURT OF APPEALS.

PART II.

By Irving Browne.

HEN the Court of Appeals had been in operation some twenty years, it had become apparent that it was inadequate and defective in several particulars : —

1. It could not keep up with its business. The arrears were very great. It took four years to reach an argument in an ordinary case.

2. It was felt that it was theoretically, if not practically, wrong to allow Supreme Court judges to sit in the Court of Appeals in review of their own decisions.

3. It was thought that the term of eight years was too short.

4. It was believed, however, that there ought to be a limitation of age beyond which a judge might not sit.

5. Much fault was found with the fluctuating composition of the court, by which one half of its members were changed every year.

A constitutional convention having been called in 1867, a new judiciary article, the result of their deliberations, was submitted to the people, adopted by a majority of less than seven thousand in a vote of about half a million, and went into effect, Jan. 1, 1870. Under that article the Court of Appeals is composed of a chief-judge and six associates, chosen by the electors of the State, and holding for a term of fourteen years, but retiring at seventy years of age, five forming a quorum and the concurrence of four being necessary to a decision. The court has power to appoint and remove its clerk, reporter, and attendants. For the first election such provision was made that the minority party was to be represented by two judges. A commission of appeals was constituted, consisting of five commissioners, four forming a quorum, to dispose of the arrears of the old Court of Appeals. This commission was composed of the last judges of the Court of Appeals, and a fifth ap pointed by the governor. Its tenure was limited to three years, but afterward extended two years. The Court of Appeals constitutes a part of the Court for the Trial of Impeachments. By the same article, the question of appointing or electing the judges was directed to be submitted to the people, and in 1873 was determined in favor of the elective system by a vote of three hundred and nineteen thousand against one hundred and fifteen thousand.

The first election resulted in the choice of Sanford E. Church, as chief-judge, and William F. Allen, Rufus W. Peckham, Martin Grover, Charles A. Rapallo, Charles An drews, and Charles J. Folger, as associates; the first five being Democrats, the last two Republicans. Subsequent substitutions made Charles J. Folger, Charles Andrews, and William C. Ruger chief-judges, and Alex ander S. Johnson, Theodore Miller, Robert Karl, Samuel Hand, Benjamin F. Tracey, George F. Danforth, Francis M. Finch, Rufus W. Peckham, Jr., John C. Gray, and Denis O'Brien associates. The present court consists of William C. Ruger, chief-judge, and 43