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Opinion of the Court, per RAPALLO, J.
same be continued by the proper parties.” This provision is, apparently, a substitute for section 118 of 2 R. S., 185, relating to suits in chancery, which provided that if there be no surviving complainant, or if he neglected to bring in the representatives of a deceased co-complainant, the court might, on the petition of the original defendant, order the representatives of the deceased complainant to show cause why the suit should not stand revived or the bill be dismissed as to them. No other proceeding, on the part of the defendant, in the nature of a revivor, as against a complainant or his representatives, was authorized by the Revised Statutes. (9 Paige, 463; 2 Barb., 373.) Under the provision cited of section 121 of the Code, the defendant can, no doubt, take this proceeding to bring the litigation to a close upon the plaintiff's death. But, as the only alternative in case the suit is not continued by the proper parties is, that it be deemed abated, the right of election would seem to be with the representatives of the deceased plaintiff.
The present case, it is true, arises upon the death of the defendant. But if, under section 121, the representatives of the defendant have the right to require a continuation of the suit on the defendant's death, the defendant would have the same right in case of the plaintiff's death. The section covers both cases, if it does either; and the provision for declaring the suit abated would seem not only unnecessary but incongruous.
My conclusion on this branch of the case is, that section 121 was not intended to change the former practice, which confined the right of continuing the action to the complainant or his representatives, unless the defendant had acquired some rights in the litigation. If the provisions of the Code are not inconsistent with the former rules of practice in this respect, those rules are still in force. (Code, § 469.)
But under the well established practice of the Court of Chancery, independently of any statutory provisions, if there had been a decree or decretal order in the suit from which the defendant could derive any advantage, it could be revived at
SICKELS VOL. IV. 17
Opinion of the Court, per RAPALLO, J.
the instance of a defendant or of his representatives, in case the complainant or his representatives neglected to revive it. (9 Paige, 395.) This was done on the ground that the defendant had obtained an interest in the further prosecution of the suit. In Williams v. Cooke (10 Ves., 407), Sir WILLIAM
“The good sense is, that in every case where a defendant can derive a benefit from the further proceeding, he may revive unless there is a general rule against it.” No such rule was found to exist, and the bill of revivor in that case, which was filed by the representatives of a deceased defendant, was sustained. See, also, Story Eq. Pleading (SS 372, 373.) The cases in which a revivor, by the defendant, was permitted in chancery, were, it is true, where there had been some interlocutory decree as for an account, etc. In the present case there had been no decree, but a counter-claim had been interposed and an issue joined upon it and referred to a referee for trial. The defendant had become an actor in the proceeding. The same reason which authorizes a revivor in the case of a decree for an account, applies to such a case.
Lord Chancellor ERSKINE states the reason to be that: “Under a decree directing a mutual account, the defendant becomes an actor, and the balance may be in his favor; he has, therefore, an undoubted interest in the prosecution of that suit, and that it may be carried forward.” (Horwood v. Schneider, 12 Ves., 316.) That is precisely the position of the defendant in this case. The provision of the Code which allows him to interpose this counter-claim, and the order of the court referring all the issues, embracing the counter-claim, to a referee for trial, give him, in substance, the same interest in the prosecution of the suit which he would have after a decree directing a mutual account from which a balance might result in his favor. To put an end to the suit is not his only right or object. (12 Ves., 316.) To deny to the court the power of directing an action to be continued on the application of the defendant or his representatives, where a counterclaim has been interposed, might be productive of serious injustice. A new action, founded on the subject-matter of the
Opinion of the Court, per RAPALLO, J.
If the power
counter-claim, might be barred by the statute of limitations.
The order should be affirmed, with costs.
Statement of case.
William HUBER, Plaintiff in Error, v. THE PEOPLE OF THE
STATE OF NEW YORK, Defendant in Error.
A provision for the reorganization of the Court of Special Sessions of the
city of New York is not embraced in and is not connected with the
(Argued February 29, 1872, decided April 2, 1872.)
Error to the General Term of the Supreme Court in the first judicial department, affirming a judgment of the Court of Special Sessions in the city of New York, convicting the plaintiff in error of the crime of petit larceny. Plaintiff in error was tried in said court on the 19th of December, 1871, by one of the justices designated by the mayor of said city to hold said court, the other justice, the record stating, “ being absent through disability.” He was convicted and sentenced to six months' imprisonment.
William F. Kintzing and Henry Wehle for the plaintiff in error. Section 49 of chapter 383, Laws of 1870 is void under the provisions of section 16, article 3 of the Constitution of the State. (Conner v. The Mayor, etc., 5 N. Y., 285; Mut. Ins. Co., v. The Mayor, etc., 8 id., 253; People ex rel. v. Hills, 35 id., 499; People v. Supervisors, etc., 43 id., 15; People v. O'Brien, 38 id., 193; Smith's Com. on Con., 419.) The trial of plaintiff in error without a jury was unconstitutional. (Constitution, $ 2, art. 1; Cancieme v. The People, 18 N. Y., 128; Townsend v. Hendrick, 40 How., 143; Laws of 1744, Van Schaik, vol. 1, p. 240; People v. Kenedy, 2 Parke's Cr. R., 312; Murphy v. The People, 2 Cowen, 815.) Jurisdiction of a court of inferior jurisdiction is never pre
Opinion of the Court, per ALLEN, J.
sumed. If the record omits to state facts giving it, such record, without proof of the facts aliunde, is not evidence. (Bloom v. Burdick, 1 Hill., 139; Harrington v. The People, 6 Barb., 610.)
Algernon S. Sullivan for the defendants in error. The Court of Special Sessions may be legally held by one justice. (Laws of 1870, chap. 383, § 49.) Plaintiff in error could have traversed the truth of the return and introduced evidence, aliunde the record. (Devine's Case, 11 Abb., 90; 6 Barb., 621.) Section 49 is constitutional. (People v. Supervisors of Chautauqua, 43 N. Y., 10; Sedgwick, 33; Burnham v. Alton, 4 Abb. [N. S.], 1.) The Constitution was not violated by permitting trial without a jury. (Murphy v. The People, 2 Cowen, 815; Kennedy's Case, 2 Parker Cr. R., 312; Goodwin's Case, 5 Wend., 251.)
ALLEN, J. The conviction of the plaintiff in error of the offence of petit larceny in the Court of Special Sessions in the city of New York, held by a single police justice, is sought to be sustained by a provision in the act of 1870 known as the “city tax levy.” (Laws of 1870, chap. 383.) It is conceded that if for any reason that clause of the act was invalid, the court was not properly constituted, and the conviction must be reversed. Prior to 1865 the Court of Special Sessions in New York was held by any three of the police justices of that city, and could not be held by any less number. (Laws of 1858, chap. 282, $ 8; In re Devine, 21 How. Pr. R. 80.) In 1865 the court was authorized to be held by the two police justices elected in the second and sixth judicial districts of the city, with power in the governor, in case of the death, removal from office or resignation of either of said justices, to designate one of the other police justices of the city to hold said court. (Laws of 1865, chap. 563.)
In 1870 the act of 1865 was repealed, and “all acts and parts of acts in force at the time of the passage of the said act, relative to said Court of Special Sessions, revived and re-en