#### Nathan Hutkoff, Resp’t, *v.*William J. Demorest, *et al,*Appl’ts. Emily R. Caldwell, *et al,*Respt's, *v.*Franklin J. Wall, Appl’t. Gotthelf Greiner, Resp’t, *v.*Jettel H. Hamburger, App’lt.

*(Court of Appeals,*

*Filed January*18, 1887.)

1. MARINE COURT OF NEW YORK CITY — NOT A COURT OF RECORD BETWEEN 1849 and 1872.

The Marine court of the city of New York (now the city court) was not a court of record in the legal sense of the term from 1849 until 1872.

2. Same — Appear — Direct to court of appeals — Const. N. Y. § 22, art. 6.

Section 22, article 6 of the State constitution applies only to courts of record, and was intended to embrace only courts of record which were established in cities at the time of the adoption of article, 6 viz: in December 1869. It therefore excluded the Marine court from the operation of the jower therein given to the legislature to authorize appeals direct to the court of appeals.

3. Court of record — Wiiat constitutes — Clerk and seal

To constitute a court of record in a legal sense it is not sufficient that the vcourt should have a clerk and a seal.

Motion for reargument of the motion to dismiss an appeal from a judgment of the general term of the city court of New *598Y ork, to tbe Court of Appeals. (See report of decision on former argument, 3 N. Y. State Rep’t., 631.)

*W. S.*Rose, for the motion. *Henry Wehle,*opposed.

Rapallo, J.

On the argument of the motion to dismiss the-appeal in this ease, no reference was made to section 22 of article 6 of the constitution, and a motion for a reargument is-now made on the ground that the omission was owing to excusable inadvertence of counsel, and that the court was thereby misled. Section 22 of article 6 provides that “ the legislature may authorize • the judgments, decrees, and decisions of any Court of record of original civil jurisdiction establishe’d in a city to be removed for review directly into the court of appeals.”' This section, not having been referred to on the argument, was-not noticed in the opinion then delivered. .As it now appears-to be relied upon by the counsel for the appellant,' we have examined the question whether it affects the present case, and have come to the conclusion that it does not require us to change our decision.

It will be observed that section 22 applies only to courts of record, and, in our judgment, was intended to embrace only courts of record which were established in cities at the time of the adoption of article 6, viz., in December,. 1869. There were at that time in existence, in addition to the court of common pleas and superior court of the city of New York, several other local courts established in cities, viz., the superior court of the city of Buffalo, the city court of Brooklyn, which were courts of record; also the marine court of the city of New York, the mayors’ courts of cities, the recorders’ courts of cities, the-district courts of the city of New York, the justices’ courts of cities, etc. The constitution evidently did not contemplate the establishment by the legislature of other superior city courts. By section 19 of article 6, the legislature was authorized to establish *inferior*local courts, but the superior courts established in cities were enumerated in the constitution, and their powers and jurisdiction made permanent, but no authority was given to establish additional superior courts in cities’; and in *Landers*v. *Staten Island*R. Co., 53 N. Y., 450, we held that, the legislature had no power to extend the jurisdiction of the city court of Brooklyn so as to deprive it of its local character.

Section 22 of article 6 was, in our judgment, intended to authorize appeals direct to the court of appeals from the courts of record in existence at the time of the adoption of the article, whose judgments were at that time reviewable, in the first instance, in the supreme court. ’ The marine court of the city of New York was a court of great importance, of ancient origin, and transacting a very large amount of business. Its jurisdiction had been from time to time increased: so lhat- although, *599except in special cases, it was originally limited to $50, it bad by degrees grown so as to embrace cases involving $500. Yet it was not a court of record, in the legal sense ' of the term, until 1872. The power to review its judgment in the first instance was vested by law in the court of common pleas, and, as was shown in the first opinion in this case, that power of review of the court of common pleas was, by the constitution, made permanent. By limiting the power of the legislature to authorize appeals directly to this court to appeals from judgments of courts of record, we think that it was the intention of section 22 of article 6 to exclude the marine court from its operation.

As there is some color for the claim that the marine court was a court of record before the passage of the act of 1872, it is necessary, for the purpose of determining that question, to advert briefly to its history. It is not necessary, for the purposes of this case, to go further back than the Revised Law of 1818. Chapter 86 of those laws, entitled “ An act to reduce several laws relating particularly to the city of New York into one act,” (section 105,) authorized the person administering the government of this State for the time being, by and with the advice and consent of the council of appointment, from time to time to appoint and commission three proper and discreet persons to be known by the name of justices of the justices’ court in and for the city and county of New York. Section 106 enacted that said three justices, or any two of them, should hold a court in the manner therein prescribed, to be known as the justices’ court of the city of New York. Jurisdiction was conferred upon such court to try and determine actions where the amount in controversy should exceed $25, and should not exceed $50. Also all actions for seamen’s wages, or by owners against seamen for breach of contracts for services, notwithstanding that the damages should exceed $50. Also actions for marine assaults, though the damages should exceed $50. And for the purpose of determining all such actions, the court was vested with all the power and authority of other courts of record in this State, and was declared to be a court of record. By section 107, such court was declared to be a court of record and authorized to have a seal, and a clerk to be appointed by the justices.

By section 110 the clerk was required to cause to be entered or registered in proper books a docket of all summons, warrants, precepts, executions and process issued, and of the returns thereto, and proper entries of all acts, orders dismissing decrees, judgments, adjournments and proceedings of said court, and also the substance of the plaintiff’s charge or demand, and of the defendant’s plea. The forms of proceeding were prescribed in subsequent sections, and were similar to those in justices’ courts". By chapter 71, of the Laws of 1819, the court was re*600organized, and its name was changed to “ tbe marine court of the city of New York.”

By chapter 149 of the Laws of 1817 the jurisdiction of the court was increased to cases involving $100; by chapter 389 of the Laws of 1853 to $250; by chapter 617 of the Laws of 1853 to $500, and further enlargements of its jurisdiction were afterward made. By chapter 144 of the Laws of 1849 (section 7) section 107 of the act of 1813, which declared the court to be a court of record, and authorized it to have a seal, was totally repealed. But by chapter 389 of the Laws of 1852 (section 10) the common council was directed to provide the clerk of the' marine court with a seal, with the proviso that nothing in the act contained should authorize said court to issue certificates of naturalization. So much, however, of the repealed section 107 of the act of 1813 as declared the court to be a court of record was not at that time re-enacted, and at the time of the adoption of article 6 of the Constitution the court remained, so far as respects the question of being a court of record, as left by the act of 1852.

To constitute a court of record in a legal sense it is not sufficient that the court should have a clerk and a seal. - A court of record is defined by Blackstone to be one whose proceedings are enrolled for a perpetual memorial and testimony, which rolls are called the records of the court, and are of such high and super-eminent authority that their truth is not to be called in question. If the existence of a record be denied, it shall be tried by nothing but itself, that is, upon baire inspection, whether there be any such record or no. 3 Bl. Comm. 24; Co. Litt. 260a and 117b. An order entered in the minutes of such a court is not a record until it has been enrolled. *Croswell*v. Byrnes, 9 Johns. 287. These rolls or records contain a history of the proceedings to which they relate.

As has already been shown, the revised act organizing the court (2 Rev. Laws 1813, ch. 86, § 105 *et seq.)*did not provide for any rolls or records other than the registers directed to be kept by the clerk, containing dockets of the processes issued by the court, and minutes of its orders and judgments, and of the substance of the pleadings, which were oral. Written pleadings were not required until 1857, (Laws 1857, ch. 295,) and even these were not required in marine cases, and there was no provision for judgment rolls in any case. But after the adoption of article 6 of the constitution, by chapter 629 of the Laws of 1872, (section 1,) the marine court of the city of New York was declared to be a court of record to and for all intents and purposes. Its powers and jurisdiction were continued except as otherwise provided in the act. By subsequent sections the forms of proceedings and remedies prescribed by the Code of Procedure for actions in courts of records, including the forms *601of pleading, were applied to the marine court, and the rules of practice of the supreme court were made applicable to it; and in the Code of Civil Procedure of 1877 it was for the first time included in the enumeration of the courts of records of this state.

Before the passage of the act of 1872 the *status*of the marine court as a court of record was considered in several cases. In *Wheaton*v. Fellows, 23 Wend. 375 which related to the justices’ court of the city of Albany, the question arose whether that court was a court of record. Its organization was similar to that of the marine court. Laws 1821, p. 36. It was composed of three justices, and had a clerk and seal, and was, in the act organizing it, declared to be a court of record, but its proceedings were to be the same as those in a justices’ court. The provisions as to the entry of its proceedings in a register were the same as those in the marine court act of 1813. It was held, in the case cited, not to be a court of record in a strict legal sense, but only for some special purposes, and a plea *nil debit*was held good in an action upon the judgment rendered by it, though it would not have been a good plea to an action on a judgment of a court of record. In *Lester*v. Redmond, 6 Hill, 590, (decided in 1841,) a like decision was rendered with reference to the marine court of the city of New York, and it was held that that court, although a court of record for certain purposes, was not such in the exercise of its jurisdiction between party and party, and the six-years statute of limitations was held to bar an action on its judgments. In *Ford*v. Babcock, 1 Denio, 158, (decided in 1845,) it was held that whoever set up the authority of the marine court must show that the case was one of which it had jurisdiction; and in *Huff*v. Knapp, 5 N. Y. 65, (decided in 1851,) it was held by this court that the marine court did not possess the power incident to courts of record to appoint a crier, and had none of the incidental powers incident to courts of record, it not being a court of record in the strict legal sense of the term. We do not think, therefore, that section 22 of article 6 of the constitution, in speaking of courts of record established in cities, intended to include the marine court of the city of New York.

The act of 1886 does not, in terms, authorize appeals direct to this court from the marine (now the city) court of the city of New York. It is only by implication that the right is claimed. By the attempt to constitute it a superior city court it is supposed that the general provisions authorizing appeals from the superior city courts were made applicable to it. We do not discuss that question, nor do we concede that the legislature had power to establish superior city courts in addition to those enumerated in the Constitution, its authority in this respect being confined by se'ction 19 of article 6 to the establishment of *602inferior local courts. The case of *Landers*v. *Staten Island R. R. Co.,*53 N. Y. 450, is apparently adverse to the view that such a power is vested in the legislature.

The motion for a reargument should be denied, without, costs.

All concur.