N.J. Constitutional Convention: Vol. 4, Page 268

Gilhooly suggested replevin also - where one tries to get possession of a specific piece of personal property. But if you ask for anything beyond money, or beyond possession of real estate, or possession of a certain piece of property, in general your action lies in equity and you are not entitled to a jury. So in New York we file our notice of trial either in the trial term clerk's office, or in the office of the clerk of special term for trials. If we file our notice in the wrong office, they don't go on with the trial of the case on that side of the court. We get sent back to the other side of the court. Sometimes it takes two or three court terms before you find out your mistake. I just want to point that out as showing that even in a court where all the judges try cases either at law or in equity they are not proof against that mistake, because you still have two systems, but both being tried by the same personnel. That is why we concluded to ask for a practical carry-over of the Court of Chancery and of the present Supreme Court, side by side, giving each of them enough jurisdiction of the other court to take care of any case.

MR. McGRATH: Pardon me for interrupting you, but in New York, if you get into the wrong court, who decides whether you are in the wrong court or not? If you are in the right court you stay; otherwise you are sent over to the other court?

MR. WURTS: That is decided by the judge in whose court you were.

MR. McGRATH: What proof does he have to have before he takes a case over? Before he decides to take it over?

MR. WURTS: Well, usually speaking, if you went into the equity court and your opponent thought he was entitled to a jury trial, he would make an appropriate motion and the court would decide that you were in the right part or you weren't in the right part. And if you didn't like it, or your opponent didn't like it, you could take it up to the Appellate Division. From almost anything in New York in the way of an interlocutory motion, there is at least one appeal as a matter of right, which is one thing we don't believe in here. But over there, the question would be determined ultimately in the Appellate Division, which is like our suggested Appellate Division. It sits over both the law and equity branches of the Supreme Court, and if it is important, it would clear up the matter right there.

MR. WINNE: You start your case, however, and you keep going to that court unless you find out that you have got to transfer it to the other one?


MR. WINNE: But you do start your case in that branch and then go over to the other branch?

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