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Griffin and wife agt. Griffith and wife,

It has merely provided for the continuance of such local courts as were at the time of the adoption of the constitution in existence in any city or village, and the creation of other courts in cities. The jurisdiction of such courts is restricted to cities. This, with the addition of a Court of Appeals and justices of the peace, constitutes the entire scheme of the constitution for a judiciary. The offices of chancellor, justice of the then existing Supreme Court, judge of the then existing County Courts, supreme court commissioner, &c., were all abolished. It is obvious that it was intended that all judicial power in the state should be possessed and exercised only by the courts and officers mentioned in the sixth article, and the local courts preserved by the 12th section of the last article.

The act under which it is claimed that the recorder of Troy acquired power to grant the order in question does, in fact, though not by name, create that officer a supreme court commissioner. It declares, in terms, that the recorder, and in certain cases, the mayor, shall possess and exercise the powers of a judge of the Supreme Court at chambers. This was precisely the office and duty of a supreme court commissioner. An officer possessing this power is, within the proper meaning of the term a supreme court commissioner. The legislature, therefore, by the act in question have, in fact, created a supreme court commissioner, and not the less have they done this, because he is not called by that ferm. It is true, that similar, though far less extensive powers have been conferred on county judges; but then there is an obvious distinction between the two cases. In the case of county judges, the constitution has expressly authorized the legislature to prescribe their powers, while, on the other hand it has, at least impliedly, withheld such authority in the case of the officers of city courts. Why, it may be asked, did the framers of the constitution declare that county judges should perform such duties as might be prescribed by the legislature, if it was not intended that the like powers should not be conferred on other officers? Why authorize the legislature to confer power upon a county judge, and not upon a recorder, if it was intended that the legislature might confer the same power upon each? The inference seems to me irresistible that it was not intended that

Griffin and wife agt. Griffith and wife. any officer, except those mentioned in the constitution should be authorized to perform any judicial duties pertaining to a judge of the Supreme Court. This inference is derived as well from the fact that the office of supreme court commissioner is abolished, as that express authority is given to the legislature to confer judicial powers upon the county judges and other local officers elected to perform their duties.

If an officer may be created and clothed with the powers of a supreme court commissioner, why may not the legislature create another officer and invest him with the powers of a chancellor? The one office is not more effectually abolished than the other. If it was intended to abolish the functions of those offices as well as the name, then the legislature have no longer the authority to confer the powers pertaining to those offices upon any person not embraced within the provisions of the constitution.

The constitution has declared what officers are competent to hold a general term of the Supreme Court, and who may hold a special term or circuit court. But it has left the powers of these courts respectively to be prescribed by the legislature. The Supreme Court, being vested with general jurisdiction in law and equity, may exercise that jurisdiction in such manner as the legislature may prescribe. It is for the legislature to determine what proceedings shall be had at a general term, and what at a special term or circuit. It may also authorize such portion of the jurisdiction vested in the court as it may deem proper, to be exercised by the judges of the court at chambers. It can not authorize a county judge to hold a circuit or special term, for the constitution has declared who shall hold such courts; but it may, I think, authorize county judges to perform such duties as a judge of the Supreme Court may perform out of court, because this power seems by the terms of the constitution to which I have already referred, to have been committed to the legislature. But for the clause in the 14th section of the sixth article, which declares that county judges may perform such other duties (which I understand, from the connexion in which the provision is found, to mean judicial duties) as may be required by law, I should have little hesitation in saying that the duties of a judge of the Supreme Court could not be delegated to any other officer.

Griffin and wife agt, Griffith and wife.

If the authority conferred upon the recorder and mayor of Troy by the act in question, is consistent with the provisions of the constitution, then there is no restriction to the power of the legis lature to create supreme court commissioners. However extensive the powers it may see fit to bestow upon a judge of the Supreme Court at chambers, all those powers may also be bestowed upon every justice of the peace in the state. The only difference between the two officers, in point of jurisdiction, would be that the latter might not constitutionally sit in a general term of the Supreme court, or hold a circuit court or special term. How far the proceedings of a judge at chambers, or a justice of the peace performing the duties of a judge at chambers might be reviewed in such courts, is also a matter resting in the discretion of the legislature. I am persuaded that the framers of the constitution never contemplated this unlimited expansibility as an attribute of the only court of general jurisdiction created by them.

It is with regret that I find myself brought to the conclusion that the law assuming to confer these powers upon a very competent officer, is in violation of the constitution. But it is matter of history that the multiplication of supreme court commissioners throughout the state, was one of the objectionable features of the system which was abrogated when the present constitution was adopted. It was this fact, undoubtedly, which led the convention to erect the barrier which I think I have shown to exist in that instrument against the repetition of this evil. I feel constrained, therefore, though aware of the inconvenience which may result from the decision, should it finally be sustained, to hold that the act conferring upon the recorder of Troy the powers of a judge of the Supreme Court at chambers is unconstitutional, and of course that the order staying the plaintiff's proceedings in this case was void.

But as the defendant's attorney has acted in good faith, he must still be permitted to make and serve a case for the purpose of reviewing the decision of the referee, for which purpose he may be allowed twenty days. All proceedings upon the judgment and execution are to be stayed in the mean time, and if the case is served, until the same is settled. Neither party is entitled to costs upon this motion.

Willis agt. Taggard.

SUPREME COURT.

Willis agt. TAGGARD.

The defendant in an action under the Code, can set up in his answer matter

falling short of a defence, by way of recoupment in mitigation of damages. An answer should cover all it professes to answer and no more. It seems a set off may be set up by answer, although it be not claimed as a full

defence. It is good as far as it goes.

Essex Special Term, July 1851. The first count in the complaint is, among other things, for a large quantity of brick sold and delivered by the plaintiff to the defendant, and the several items are set out as in a bill of particulars, together with the time when they were delivered and their value; and it claims that $696.68 remains due therefor to the plaintiff.

There are four other counts, to wit: one for goods sold; one for work and labor; one for money lent, and one for money had and received; and the complaint concludes with demanding a thousand dollars damages.

The amended answer denies that the plaintiff ever sold to the defendant the goods and chattels mentioned in the complaint, or any part thereof, and denies that he was indebted to the plaintiff therefor in the sum of $696-68. It also denies the indebtedness set up in each separate count.

It then sets up by way of recoupment, that in the winter of 1850 the parties entered into a contract by which the plaintiff agreed to furnish the defendant a quantity of brick at a price agreed upon for the purpose of building a hotel at Keeseville in the county of Essex, a part of which brick were to be of a size and quality similar to a model then exhibited to the plaintiff, and the balance to be good merchantable brick, of the usual size. That in pursuance of the agreement, the plaintiff furnished the defendant brick sufficient to build the hotel, which are a part of the brick mentioned in the complaint, and the defendant avers that the brick which were to be made after the model were not of the size or quality of said model, but on the contrary were too small and not well burnt, and were not all of

Willis agt. Taggard.

the same size, but uneven and of different sizes; nor were the balance good merchantable brick, but were made of bad materials, not well burnt, small and uneven and not of uniform size; by reason whereof the defendant had to furnish more lime and brick, and

pay the masons greater wages, and the walls were less substantial than they otherwise would have been, and the defendant thus sustained damages to the amount of seven hundred dollars, which damages the defendant will recoup, and give the same in evidence in mitigation of damages claimed by the plaintiff for said brick, &c.

The plaintiff has demurred to this part of the answer, and has assigned a great number of causes of demurrer.

for Plaintiff
for Defendant.

Willard, Justice.—The objection that this part of the answer does not, in terms, refer to any one count in the complaint in particular, is not well taken in fact. There is but one count which seeks to recover for brick sold, and this is set up as a defence to so much of the complaint as relates to brick. It would have been more lawyer like to have referred to it as the first count of the complaint, or to such part of that count as related to brick. But it is obviously inapplicable to any other count. The answer is not very definite in its statements; but if the plaintiff did not understand by it the precise nature of the defence intended to be made, he should have applied to the court, under 160, for an order requiring the pleading to be made more definite and certain. This proceeding is in the nature of an exception for insufficiency, and can not be taken after pleading over.

The formal objections to this part of the answer are none of them sufficient to render it null and void.

The main question in the case is, whether a defendant can, under the Code, set up in his answer matter falling short of a defence, by way of recoupment in mitigation of damages?

The general rule of pleading is, under the Code, that an answer must either contain a denial in some form authorized by the Code, of the matter of the complaint, or a statement of new matter,

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