REPORT OF COMMITTEE TO CONFER WITH THE COURT OF APPEALS AND TO RECOMMEND MEASURES FOR THE RELIEF OF THE CONGESTED CALENDAR OF THAT COURT To the New York State Bar Association: Gentlemen, at the last annual meeting of the Association, the following resolution was unanimously adopted: Resolved, That a committee of such number as the President of the Association may elect, be appointed by him to confer with the Court of Appeals, and to report to the Association at its next annual meeting, or a sooner called special meeting, such measure for the relief of the existing congested condition of the calendar of the Court as their judgment may suggest, and that the President of the Association be ex officio a member of that Committee.". Pursuant to the resolution, the President of the Association appointed the following: John M. Bowers. Alton B. Parker. Elihu Root. Henry W. Taft. William N. Dykman. Carlos C. Alden. Simon Fleischmann. William Church Osborn. Meier Steinbrink. A. T. Clearwater. The President himself becoming ipso facto a member of the Committee ex officio. Mr. Clearwater was chosen Chairman. The Committee after conferring with the Court of Appeals called a special meeting of the Association, and after a thorough consideration of the subject, framed and presented to the Legislature the amendments to sections 190 and 191 of the Code of Civil Procedure which are embodied in chapter 290 of the Laws of 1917, becoming a law on the 20th day of April of that year, and taking effect on the first day of June last. It is, of course, too early to express a final and definite opinion upon the effect of the amendment, but it is the belief of your Committee, predicated upon the data derived from the records of the Court, and from members of the Bar in all parts of the State, that the amendment was wise; that it largely will limit frivolous and dilatory appeals to the court of last resort, thereby relieving that congestion of its calendar which for many years has postponed its determination of causes, proved a serious embarrassment to its members, and tended to create the erroneous and vicious belief that the administration of justice in this State was unnecessarily delayed, and that the delay primarily was due to the inactivity of the Bench. The data received from the Clerk of the Court is as follows: On the last calendar of the Court there were 860 causes. During the year 1916 the Court finally disposed of 737 causes, including cases argued, submitted or dismissed on motion and stipulation. During the year 1917 the Court in the same manner disposed of 891 cases, an increase of 154. Up until January 5th, 1918, the number of appeals filed, and which will appear upon the new calendar of that date, are 696, 164 less than appeared on the calendar of January 17th, 1916.. When the increase in important litigation is considered, the conclusion seems not unwarranted that the effect of the amendment has been and will be beneficent. Dated, January 10th, 1918. Respectfully submitted, A. T. CLEARWATER, Chairman. A. T. Clearwater, of Kingston: I desire to say, in connection with this report, that there was suggested at the last meeting of the Association the consideration and advocacy of a constitutional amendment which would enable the Court of Appeals when a case is reached in that Court under the limitations prescribed by statute to deal with the case effectively and finally to determine whether under the most favorable consideration of the facts and the law a recovery could be had. There has been a divergence of opinion as to its wisdom. That subject is still before the Association for consideration. I move the adoption of this report. Alton B. Parker, of New York: I move an amendment to the motion, that the Coinmittee be continued and requested to use every effort to procure as speedily as possible an amendment to the Constitution which shall not deprive the Court of Appeals longer of the right to pass upon the one question in every case, namely, whether or not there could have been a recovery under the most favorable view of the circumstances. Some years ago, in the late Constitutional Convention, Mr. Wickersham, as chairman of a committee, made a unanimous report, which was adopted by that Convention, that the Constitution should be amended to pro vide for this. Unfortunately the adoption of that Constitution was defeated by the people. The amendment was seconded. Chief Judge Hiscock: May I be permitted to say just a word on this matter. Judge Clearwater's report of what has been accomplished is so clear that there is very little for me to add. I may perhaps supplement it by one or two statements which are the result of an analysis of the figures that I did not have before me when I talked with Judge Clearwater. As his report shows, the cases on the new calendar of the Court of Appeals now being made up are 160 less than those which were on the preceding calendar. The comparison is really somewhat better than those figures indicate, because the calendar which is now being made up covers the appeals which have accumulated during two full years, while the preceding calendar covered appeals which had accumulated during a year and nine months. When you take into account that difference in time, we see that if appeals had accumulated for the present calendar at the same rate as they did accumulate for the preceding one, the calendar now being made up would have been 288 cases larger than it is. So that I figure there has been a real gain of nearly 300 cases on the calendar now being made up as compared with the preceding one. It is of course impossible to tell just what the result of the legislation which was adopted last year will be so far as appeals from judgments are concerned, because out of the two years during which these appeals have accumulated all except six or seven months were under the old rules governing the right of appeal and not under the new ones. In respect of the suggestion made by Judge Parker, and which I think is also recommended by Judge Clearwater, as stated, last year the proposition to have the present unanimous affirmance rule abolished by constitutional amendment was considered, and action was deferred pending application to the Legislature for the amendments limiting the right of appeal. I appreciate fully the dissatisfaction which there is with the rule of unanimous affirmance among members of the Bar. I appreciate the fact that it oftentimes prevents the Court from considering the fundamental question in a case, namely, whether there is any evidence at all to support a judgment. I have not a word to say in opposition to any sentiment in favor of removing that restriction upon the power of the Court of Appeals in considering cases. I have only one suggestion to make, and that is purely a suggestion, because I feel that the Court of Appeals has been treated with such consideration by this Association in respect of its suggestions that we ought not to try to press our views upon the members of the Association. against their judgment. My suggestion is that your Committee may have a large enough power so that it will have the right to consider whether it may not be desirable to postpone the introduction of this proposed amendment for a year or so. If we are able to maintain the same despatch of business in disposing of the new calendar which was followed in disposing of the preceding one, it will take us a year and about four or six months to dispose of the new calendar, because you all understand that the initial number of 690 cases now being put on it does not really represent the business which will be disposed of on that calendar. Criminal cases will be added and appeals from orders, |