Majority
p. 18NEW YORK SPECIAL TERM, September 30, 1848. Before Edmonds, Justice. Anonymous. said that in his absence during the summer vacation, similar demurrers had been put in to several complaints which he had filed, and, as he had understood, on the advice of eminent counsel. He had therefore interposed this, in order to have the question settled. The ground taken was, that the Code, under which the complaint was filed, was unconstitutional. In what respect is the Code alleged to be unconstitutional ? The commissioners exceeded the authority conferred upon them by the statute appointing them. That can be of no consequence. The only question is, whether the legislature exceeded its authority. It is alleged that it did so in abolishing the distinction between law and equity, while the Constitution expressly recognized that distinction.
Headnote
On a motion for judgment by reason of the frivolousness of a demurrer to a complaint:Held, that the Code is constitutional.
Mr. Gould, for defendant,
Edmonds, J.:
Gould,:
Gould:
The Code abolishes the distinction only as to form; only as to the mere practice. The great principles of law and equity, as they existed in our jurisprudence at the adoption of our Constitution, are untouched. Besides, the
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power of altering the common law, in any respect, is expressly conferred upon the legislature by the Constitution.
As at present advised I must overrule the demurrer as frivolous.