NEW YORK. The name of one of the original states of the United States
of America. ln its colonial condition this state was governed from the period of
the revolution of 1688, by governors appointed by the crown assisted by a
council, which received its appointments also from the parental government, and
by the representatives of the people. 1 Story, Const. B. 1, ch. 10.
2. The present constitution of the state was adopted by a convention of the
people, at Albany, on the ninth day of October, 1846, and went into force from
and including the first day of January, 1847. The powers of the government are
distributed among three classes of magistrates, the legislative, the executive,
and the judicial;
3. - 1. The legislative power is vested in a senate and assembly. By the
second article, section first, of the constitution, the qualifications of the
electors are thus described, namely:: Every male citizen of the age of twenty-
one years, who shall have been a citizen for ten days, and an inhabitant of this
state one year next, preceding any election, and for the last four months a
resident of the county where he may offer bis vote, shall be entitled to vote at
such election in the election district of which he shall at the time be a
resident, and not elsewhere, for all officers that now are or hereafter may be
elective by the people; but such citizen shall have been for thirty days next
preceding the election, a resident of the district from which the officer is to
be chosen for whom he offers his vote. But no man of color, unless he shall have
been for three years a citizen of this state, and for one year next preceding
any election shall have been seised and possessed of a freehold estate of the
value of two hundred and fifty dollars, over and above all debts and
incumbrances, charged thereon, and shall have been actually rated and paid a tax
thereon, shall be entitled to vote at such election. And no person of color
shall be subject to direct taxation unless he shall be seised and possessed of
such real estate as aforesaid.
4. The third article provides as follows Sect. 6. The members of the
legislature sliall receive for their services, a sum not exceeding tbree dollars
a day, from the commencement of the session; but such pay shall not exceed in
the aggregate, three hundred dollars for per them allowance, except in
proceedings for impeachment. The limitation as to the aggregate compensation
shall not take effect until the year one thousand eight hundred and forty -
eight. When convened in extra session by the governor, they shall receive three
dollars per day. They sliall also receive the sum of one dollar for every ten
miles they shall travel, in going to and returning from their place of meeting
on the most usual route. The speaker of the assembly shall, in virtue of his
office, receive an additional compensation equal to one-third of his per them
allowance as a member.
Sect. 7. No member of the legislature shall receive any civil appointment
within this state, or to the senate of the United States, from the governor, the
governor and senate, or from the legislature, during the term for which he shall
have been elected; and all such appointments, and all votes given for any such
member, for any such office or appointment, shall be void. Sect. 8. No person
being a member of congress, or holding any judicial or military office under the
United States, shall hold a seat in the legislature. And if any person shall,
after his election as a member of the legislature, be elected to congress, or
appointed to any office, civil or military, under the government of the United
States, his acceptance thereof shall vacate his seat.
Sect. 9. The elections of senators and members of assembly, pursuant to the
provisions of this constitution, shall be held on the Tuesday succeeding the
first Monday of November, unless otherwise directed by the legislature.
Sect. 10. A majority of each house shall constitute a quorum to do business.
Each house sliall determine the rules of its own proceedings, and be the judge
of the elections, returns and qualifications of its own members, shall choose
its own officers, and the senate shall choose a temporary president, when the
lieutenant. governor shall not attend as president, or shall act as
Sect. 11. Each house shall keep a journal of its proceedings, and publish the
same, except such parts as may require secrecy. The doors of each house shall be
kept open, except when the public welfare shall require secrecy. Neither house
shall, without the consent of the other, adjourn for more than two days.
Sect. 12. For any speech or debate in either house of the, legislature, the
members shall not be questioned in any other place.
5. - 1. The senate consists of thirty - two members, chosen by the electors.
The state is divided into thirty - two districts, and each district elects one
6. Senators are chosen for two years. v20 7. - 2. The assembly shall consist
of one hundred and twenty-eight members. Art. 3, s. 2.
8. The state shall be divided into assembly districts as provided by the
fifth section of the third article of the constitution as follows: The members
of assembly shall be apportioned among the several counties of this state, by
the legislature, as nearly as may be, according to the number of their
respective inhabitants, excluding aliens, and persons of color not taxed, and
shall be chosen by single districts.
"The several boards of supervisors in such counties of this state, as are now
entitled to more than one member of assembly, shall assemble on the first
Tuesday of January next, and divide their respective counties into assembly
districts equal to the number of members of assembly to which such counties are
now severally entitled by law, and shall cause to be filed in the offices of the
secretary of state and the clerks of their respective counties, a description of
such assembly districts, specifying the number of each district and the
population thereof, according to the last preceding state enumeration, as near
as can be ascertained. Each assembly district shall contain, as nearly as may
be, an equal number of inbabitants, excluding aliens and persons of color not
taxed, and shall consist of convenient. and contiguous territory; but no town
shall be divided in the formation of assembly districts.
"The legislature, at its first session after the return of every enumeration,
shall re-apportion the members of assembly among the several counties of this
state, in manner aforesaid, and the boards of supervisors in such counties as,
may be entitled, under such reapportionment, to more than one member, shall
assemble at such time as the legislature making such reapportionment shall
prescribe, and divide such counties into assembly districts, in the manner
herein directed and the apportionment and districts so to be made, shall remain
unaltered until another enumeration shall be taken under the provisions of the
"Every county heretofore established and separately organized, except the
county of Hamilton, shall always be entitled to one member of the assembly, and
no new county shall be hereafter erected, unless its population shall entitle it
to a member.
" The county of Hamilton shall elect with the county of Fulton, until the
population of the county of Hamilton shall, according to the ratio, be entitled
to a member."
9. The members of assembly are elected annually.
10. - 2. The fourth article vests the executive power as follows:
" Sect. 1. The executive power shall be vested in a governor, who shall hold
his office for two years; a lieutenant governor shall be chosen at the same
time, and for the same term.
" Sect. 2. No person except a citizen of the United States, shall be eligible
to the office of governor; nor shall any person be eligible to that office, who
shall not have attained the age of thirty years, and who shall not have been
five years next preceding his election, a resident within this state.
" Sect. 3. The governor and lieutenant governor shall be elected at the times
and places of choosing members of the assembly. The persons respectively having
the highest number of votes for governor and lieutenant governor, shall be
elected; but in case two or more shall have an equal and the highest number of
votes for governor, or for lieutenant governor, the two houses of the
legislature at its next annual session, shall, forthwith, by joint ballot,
choose one of the said persons so having an equal and the highest number of
votes for governor or lieutenaut governor.
" Sect. 4. The governor shall be commander-in-chief of the military and naval
forces of the state. He shall have power to convene the legislature (or the
senate only) on extraordinary occasions. He shall communicate by message to the
legislature at every session, the condition of the state, and recommend such
matters to them as be shall judge expedient. He shall transact all necessary
business with the officers of government, civil and military. He shall expedite
all such measures, as may be resolved upon by the legislature, and shall take
care that the laws are faithfully executed. He shall, at stated times, receive
for his services, a compensation to be established by law, which shall neither
be increased nor diminished after his election and during his continuance in
" Sect. 5. The governor shall have the power to grant reprieves, commutations
and pardons after conviction, for all offences except treason and cases of
impeachment, upon such conditions, and with such restrictions and limitations,
as he may think proper, subject to such regulation as may be provided by. law
relative to the maniaer of applying for pardons. Upon conviction for treason, he
shall have power to suspend the execution of the sentence, until the Oft - - e
shall be reported to the legislature at its next meeting, when the legislature
shall either pardon, or commute the sentence, direct the execution of the
sentence, or grant a further reprieve. He sliall annually communicate to the
legislature each case of reprieve, commutation or pardon granted stating the
name of the convict, the crime of which he was convicted, the sentence and its
date, and the date of the commutation, pardon or reprieve.
"Sect. 6. In case of the impeachment of the governor, of his removal from
office, death, inability to discharge the powers and duties of the said office,
resignation or absence from the state, the powers and duties of the office shall
devolve upon the lieutenant governor for the residue of the term, or until the
disability shall cease. But when the governor shall, with the consent of the
legislature, be out of the state in time of war, at the head of a military force
thereof, he shall continue commander-in-chief of all the military force of the
"Sect. 7. The lieutenant governor shall possess the same qualifications of
eligibility for office as the governor. He shall be president of the senate, but
shall have only a casting vote therein. If during a vacancy of the office of
governor, the lieutenant governor shall be impeached, displaced, resign, die, or
become incapable of performing the duties of his office, or be absent from the
state, the president of the senate shall act as governor, until the vacancy be
filled, or the disability shall cease.
"Sect. 8. The lieutenant governor shall, while acting as such, receive a
compensation which shall be fixed by law, and which shall not be increased or
diminished during his continuance in office.
"Sect. 9. Every bill which shall have passed the senate and assembly, shall,
before it becomes a law, be presented to the governor; if be approve, he shall
Sign it; but if not, he shall return it with his objections to that bouse in
which it shall have originated; who shall enter the objections at large on their
journal, and proceed to reconsider it. If after such reconsideration, two-thirds
of the members present shall agree to pass the bill, it shall be sent, together
with the objections, to the other house, by which it shall likewise be
reconsidered: and if approved by two-thirds of all the members present, it shall
become a law, notwithstanding the objections of the governor. But in all such
cases, the votes of both houses shall be determined by yeas and nays, and the
flames of the members voting for and against the bill, shall be entered on the
journal of each house respectively. If any bill shall not be returned by the
governor within ten days (Sundays excepted) after it shall have been presented
to him, the same shall be a law, in like manner as if he had signed it, unless
the legislature shall, by their adjournment, prevent its return; in which case
it shall not be a law."
11. - 3. The sixth article distributes the judicial power as follows:
"Sect. 1. The assembly shall have the power of impeachment, by the vote of a
majority of all the members elected. The court for the trial of impeachments,
shall be composed of the president of the senate, the senators, or a major part
of them, and, the judges of the court of appeals, or the major part of them. On
the trial of an impeachment against the governor, the lieutenant governor shall
not act as a member of the court. No judicial officer shall exercise bis office
after he shall have been impeached, until he shall have been acquitted. Before
the trial of an impeachment, the members of the court shall take, an oath or
affirmation, truly and impartially to try the impeachment, according to
evidence; and no person shall be convicted without the concurrence of two-thirds
of the members present. Judgment, in cases of impeachment, shall not extend
further than to removal from office, or removal from office and disqualification
to hold and enjoy any office of honor, trust, or profit under this state; but
the party impeached shall be liable to indictment, and punishment according to
"Sect. 2. There shall be a court of appeals, composed of eight judges, of
whom four shall be elected by the electors of the state for eight years, and
four selected from the class of justices of the supreme court, having the
shortest time to serve. Provision shall be made by law, for designating one of
the number elected, as chief judge, and for selecting such justices of the
supreme court, from time to time, and for so classifying those elected, that one
shall be elected every second year.
"Sect. 3. There shall be a supreme court having general jurisdiction in law
"Sect. 4. The state shall be divided into eight judicial districts, of which
the city of New York shall be one: the others to be bounded by county lines. and
to be compact, and equal in population, as rearly as may be. There shall be four
justices of the supreme court in each district, and as many more in the district
composed of the city of New York, as may from time to time be authorized by law,
but not to exceed in the whole such number in proportion to its population, as
shall be in conformity with the number of such judges in the residue of the
state in proportion to its population. They shall be classified so that one of
the justices of each district shall go out of office at the end of every two
years. After the expiration of their terms under such classification, the term
of their office shall be eight years.
"Sect. 5. The legislature shall have the same powers to alter and regulate
the jurisdiction and proceedings in law and equity, as they have heretofore
"Sect. 6. Provisions may be made by law for designating, from time to time,
one or more of the said justices, who is not a judge of the court of appeals, to
preside at the general terms of the said court to be held in the several
districts. Any three or more of the said justices, of whom one of the said
justices so designated shall always be one, may hold: such general terms. And
any one or more of the justices may hold special terms and circuit courts, and
any one of them may preside in courts of oyer and terminer in any county.
"Sect. 7. The judges of the court of appeals and justices of the supreme
court, shall severally receive, at stated times, for their services, a
compensation to be established by law, which shall not be increased or
diminished during their continuance in office.
"Sect. 8. They shall not hold any other office or public trust. All votes for
either of them, for any elective office, (except that of justice of the supreme
court, or judge of the court of appeals,) given by the legislature or the
people, shall be void. They shall not exercise any power of appointment to
public office. Any male citizen of the age of twenty-one years, of good moral
character, and who possesses the requisite qualifications of learning and
ability, shall be entitled to admission to practice in all the courts of this
"Sect. 9. The classification of the justices of the supreme court; the times
and place of holding the terms of the court of appeals, and of the general and
special terms of the supreme court within the several districts, and the circuit
courts and courts of oyer and terminer within the several counties, shall be
provided for by law.
"Sect. 10. The testimony in equity cases shall be taken in like manner as in
cases at law.
"Sect. 11. Justices of the supreme court and judges of the court of appeals,
way be removed by concurrent resolution of both houses of the legislature, if
two-thirds of all the members elected to the assembly, and a majority of all the
members elected to the senate, concur therein. All judicial officers, except
those mentioned in this section, and except justices of the peace, and judges
and justices of inferior courts not of record, may be removed by the senate, on
the recommendation of the governor: but no removal shall be made by virtue of
this section, unless the cause thereof be entered on the journals, nor unless
the party complained of, shall have been served with a copy of the complaint
against him, and shall have had an opportunity of being heard in his defence. On
the question of removal, the ayes and noes shall be entered on the journals.
"Sect. 12. The judges of the court of appeals shall be elected by the
electors of the state, ana the justices of the supreme court by the electors of
the several judicial districts, at such times as may be proscribed by law.
"Sect. 13. In case the office of any judge of the court of appeals, or
justice of the supreme court, shall becoine vacant before the expiration of the
regular term for which he was elected, the vacancy may be filled by appointment
by the governor, until it shall be supplied at the next general election of
judges, when it shall be filled by election, for the residue of the unexpired
Sect. 14. There shall be elected in each of the counties of this state,
except the city and county of New York, one county judge, who shall hold his
office for four years. He shall hold the county court, and perform the duties of
the office of surrogate. The county court shall have such jurisdiction in cases
arising in justices' courts, and in special cases, as the legislature may
prescribe, but shall have no original civil jurisdiction, except in such special
"The county judge, with two justices of the peace, to be designated according
to law, may hold courts of sessions, with such criminal jurisdiction as the
legislature shall prescribe, and perform such other duties as may be required by
"The county judge shall receive an annual salary, to be fixed by the board of
supervisors, which sliall be neither increased nor diminished during his
continuance in office. The justices of the peace for services in courts of
sessions, shall be paid a per diem allowance out of the county treasury. "In
counties having a population exceeding forty thousand, the legislature may
provide for the election of a separate officer to perform the duties of the
office of surrogate.
"The legislature may confer equity jurisdiction in special cases upon the
"Inferior local courts, of civil and criminal jurisdiction, may be
established by the legislature in cities; and such courts, except for the cities
of New York and Buffalo, shall have an uniform organization and jurisdiction in
"Sect. 15. The legislature may, on application of the board of supervisors,
provide for the election of local officers, not to exceed two in any county, to
discharge the duties of county judge, and of surrogate in cases of their
inability, or of a vacancy, and to exercise such other powers in special cases
as may be provided by law.
"Sect. 16. The legislature may reorganize the judicial districts at the first
session after the return of every enumeration under this constitution, in the
manner provided for in the fourth section of this article, and at no other time;
and they may, at such session, increase or diminish the number of districts, but
such increase or diminution shall not, be more than one district at any one
time. Each district shall have four justices of the supreme court; but no
diminution of the districts shall have the effect to remove a judge from
"Sect. 17. The electors of the several towns shall, at their annual town
meeting, and in such manner as the legislature may direct, elect justices of the
peace, whose term of office shall be four years. In case of an election to fill
a vacancy occurring before the expiration of a full term, they shall hold for
the residue of the unexpired term. Their number and classification may be
regulated by law. Justices of the peace and judges or justices of inferior
courts, not of record, and their clerks, may be removed, (after due notice and
an opportunity of being beard in their defence) by such county, city or state
courts as may be prescribed by law, for causes to be assigned in the order of
"Sect. 18. All judicial officers of cities and villages, and all such
judicial officers is may be created therein by law, shall be elected at such
times and in such manner as the legislature may direct.
"Sect. 19. The clerks of the several counties of this state shall be clerks
of the supreme court, with such powers and duties as shall be prescribed by law.
A clerk for the court of appeals, to be ex officio clerk of the supreme court,
and to keep his office at the seat of government, shall be chosen by the
electors of the state; he shall hold his office for three years, and bis
compensation shall be fixed by law and paid out of the public treasury.
"Sec. 20. No judicial officer, except justices of the peace, shall receive to
his own use any fees or perquisites of office.
"Sect. 21. The legislature may authorize the judgments, decrees and decisions
of any local inferior court of record of original civil jurisdiction,
established removed for review directly into the court of appeals.
"Sect. 22. The legislature shall provide for the speedy publication of all
statute laws, and of such judicial decisions as it may deem expedient. And all
laws and judicial decisions shall be free for publication by any person.
"Sect. 23. Tribunals of conciliation may be established, with such powers and
duties as may be prescribed by law; but such tribunals shall have no power to
render judgment to be obligatory on the parties, except they voluntarily submit
their matters in difference and agree to abide the judgment, or assent thereto,
in the presence of such tribunal, in such cases as shall be prescribed by
"Sect. 25. The legislature, at its first session after the adoption of this
constitution, shall provide for the organization of the court of appeals, and
for transferring to it the business pending in the court for the correction of
errors, and for the allowance of writs of error and appeals to the court of
appeals, from the judgments and decrees of the present court of chancery and
supreme court, and of the courts that may be organized under this
12. The sixth article, section 24, provides that the legislature, at its
first session after the adoption of this constitution, shall provide for the
appointment of three commissioners, whose duty it shall be to revise, reform,
simplify and abridge the rules and practice, pleadings, forms and proceedings of
the courts of record of this state, and to report thereon to the legislature,
subject to their adoption and modification from time to time.
13. In pursuance of the provisions of this section, commissioners were
appointed to revise the laws on the subject of the practice, pleadings and
proceedings of the courts of this state, who made a report to the legislature.
This report, with some alterations, was enacted into a law on the 12th of April,
1848, ch. 379, by which the forms of action are abolished, and the whole subject
is extremely simplified. How it will work in practice, time will make
NEWLY DISCOVERED EVIDENCE. That evidence which, after diligent search
for it, was not discovered until after the trial of a cause.
2. In general a new trial will be granted on the ground that new, important,
and material evidence has been discovered since the trial of the cause. 2 Wash.
C. C. 411. But this rule must be received with the following qualifications: 1.
When the evidence is merely cumulative, it is not sufficient ground for a new
trial. 1 Sumn. 451; 6 Pick. 114; 4 Halst. 228; 2 Caines, 129; 4 Wend. 579; 1 A.
K. Marsh. 151; 8 John. 84; 15 John. 210; 5 Ham. 375 10 Pick. 16; 7 W. & S.
415; 11 Ohio, 147; 1 Scamm. 490; 1 Green, 177; 5 Pike, 403; 1 Ashm. 141; 2 Ashm.
69; 3 Vei - in. 72; 3 A. K. Marsh. 104. 2. When the evidence is not material. 5
S. & R. 41; 1 P. A. Browne, Appx. 71; 1 A. K. Marsh. 151. 3. The evidence
must be discovered after the trial, for if it be known before the verdict has
been rendered, it is not newly discovered. 2 Sumn. 19; 7 Cowen, 369; 2 A. K.
Marsh. 42. 4. The evidence must be such, that the party could not by due
diligence have discovered it before trial. 2 Binn. 582; 1 Misso. 49; 5 Halst.
250; 1 South. 338; 7 Halst. 225; 1 Blackf. 367; 11 Con. 15; 1 Bay, 263, 491; 4
Yeates, 446; 2 Fairf. 218; 7 Metc. 478; Dudl. G. Rep. 85; 9 Shepl. 246; 14 Verm.
414, 558; 2 Ashm. 41, 69; 6 Miss. 600 2 Pike, 133 7 Yerg. 432; 6 Blackf. 496; 1