631 119 v. Wise, 10 Pa. 157. Sower o. Weaver, 78 Pa. 443. 231 Speer v. Speer, 1 McCart. 240 378 Spelman v. Aldrich, 126 Mass. 113.. 355 Sponsler's Appeal, 107 Pa. 95 90 Sproule v. Bouch, L. R. 29 Ch. Div. 635, 653... Stafford v. Root, 9 Cow, 626. 69 268 597 631 891 438 753 471 658 160 95 361 432 799 360 Robert v. Corning, 89 N. Y. 225. Rochester City Bank e. Elwood, 21 N. Y. 90.. 69 38 v. Byrne, 47 Conn. 465. 59 v. Culler, 18 Md. 419 391 Rooney v. Second Ave. R. R. Co., 18 N. Y. 368.. 789 v. Marvin, 35 N. H. 22. 57 Rosenberger v. Washington Fire Ins. Co., 87 Pa. 207 v. Wallace, 9 N. H. 513. 57 Smith v. Butcher, L. R. 10 Ch. Div. 113 468 Thorp v. Owen, 2 Hare, 608, 610 370 287 885 72 v. Mason, 8 Gill, 1, 11, 12. 100 N. Y 35.. 684 437 287 689 412 441 44, 705 866 456 Tingley v. Bateman, 10 Mass. 343. v. Troy, 61 N. Y. 506. Towle v. Forney, 14 N. Y. 425. Townsend v. Hendricks, 40 How. Pr. 143, 164. 47 372 Watchman v. Crook, 5 Gill & J. 239. 69 Watson v. Hunter, 5 Johns. Ch. 169. 496 Weed v. Ballston Spa, 76 N. Y. 329. v. Saratoga etc. R. R. Co., 19 Wend. 534. Wells o. Wells, 88 N. Y. 323. Welsh v. Cochran, 63 N. Y. 181. v. Darragh, 52 N. Y. 590. 292 711 731 220 154 v. Stearns, 32 N. Y. 209. Travelers' Ins. Co. v. Mosley, 8 Wall. 397 (75 U. S. bk. 19, L. ed. 437)... Tripp v. Bishop, 56 Pa. 424. Trotter v. Heckscher, 2 Cent. Rep. 729, 732; 13 Stew. Eq. 612, 645.-480, 481 Truby v. Byers, 6 Pa. 347. 631 Trustees v. Mayor of Hoboken,4 Vroom, 13 461 Turner v. Jaycox, 40 N. Y. 470.......... v. Walker, 3 Gill & J. 387 Tyng v. Commercial Warehouse Co., 58 U. U. S., Key, v. Frelinghuysen, 2 Mackey, 301. 729 399 739 Werely. Persons, 28 N. Y. 344. Westervelt v. Haff, 2 Sandf. Ch. 98. v. Roberts, 10 How. Pr. 51. v. Zabriskie, 2 Stew. Eq. 62. Wheatley v. Coal Co., L. R. 9 Eq. 538. Wheaton v. Fellows, 23 Wend. 375.. Wheeler v. Addison, 54 Md. 41.. v. New Brunswick etc. R. R. Co., 115 U. S. 29 (Bk. 29, L. ed. 341) Whitaker v. Brown, 46 Pa. 197. White v. Flannigan, 1 Md. 525. . Howard, 46 N. Y. 144, 162; 89 N. Y. 175 Whiting v. Bank of U. S. 13 Pet. 6 (38 U. S. bk. 10, L. ed. 33) 434 920 47 815 69 738 711 702 666 38 922 90 779 805 128 338 34 429 817 CENTRAL REPORTER. (Each case shows its date of decision.) NEW YORK. COURT OF APPEALS. John HUTKOFF, Respt., อ. William J. DEMOREST et al., Appts. Emily R. CALDWELL et al., Respts., v. Franklin J. WALL, Appt. Gotthelf GREINER, Respt., v. Jettel H. HAMBURGER, Appt. 1. Section 22 of article 6 of the Constitution, giving the Legislature power to authorize appeals from courts of record to be taken directly to the Court of Appeals, was intended to embrace only courts of record which were established in cities at the time of the adoption of article 6, to wit, in December, 1869. 2. The superior courts established in cities were enumerated in the Constitution, and their power and jurisdiction made permanent; and no authority was given to establish additional ones, although the Legislature was authorized to establish inferior local courts. 3. Section 22 of article 6 of the Constitution, in speaking of courts of record established in cities, did not intend to include the Marine Court of the City of New York. (Decided January 18, 1887.) MOTIONS by appellants, for reargument of motions to dismiss appeals from judgments of the General Term of the City Court of New York. Denied. The opinion on granting the original motion to dismiss the appeals is reported in 4 Central Reporter, 773. The questions raised appear from the opinion. Mr. W. S. Rose with Mr. W. T. Birdsall, for the motion. Mr. Henry Wehle with Mr. Charles Goldzier, contra. Rapallo, J., delivered the opinion of the court: On the argument of the motions to 'dismiss the appeals in these cases no reference was made to section 22 of article 6 of the Constitution; and a motion for a reargument is now made, upon 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 C. R., V. VII. N. Y. original civil jurisdiction, established 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 appellants, 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 tablish inferior local courts; but the superior article 6 the Legislature was authorized to escourts 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. 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 that although, except in special cases, it was originally limited to $50, it had 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 judgments, 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 3 575 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 Laws of 1813. Chapter 86 of those laws entitled "An Act to Reduce Several Laws Relating Particularly to the City of New York into One Act" (§ 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, although 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. viso 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 reenacted; and at the time of the adoption of article 6 of the Constitution the court remained, so far as respects the question of its 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 bare inspection, whether there be any such record or no. 3 Bl. Com, 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 R. L. 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, chap. 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 (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 By section 110 the clerk was required to cause to be entered or registered in proper books a docket of all summonses, 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 sub-courts of record, including the forms of pleadstance 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 reorganized, and its name was changed to "The 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 1852 it was further increased 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 (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 (10) the common council was directed to provide the clerk of the Marine Court with a seal, with the pro ing, 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 record 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 Justice's 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 jus tice's 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 rec ord in a strict legal sense, but only for some special purposes; and a plea nil debet was held good in an action upon a judgment rendered by it, although 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 1844, 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 of 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 the 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 section 19 of article 6 to the establishment of inferior 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. are not to be limited to the language of the recital, where the language of the condition clearly shows an intention to incur a liability not in terms referred to in the recital. 4. Guaranties are to be interpreted and enforced according to the meaning and intent and in the manner designed by the parties at the time of their execution, giving due effect to every part of the 5. 6. same. A contract will have a retroactive effect where by express words or necessary implication it appears to be the intention of the parties to embrace past transactions. When the language of the contract was that the bank should account for and pay over all moneys deposited with it and all moneys now on deposit in said bank or for which it shall in any way become liable, held, that the sureties thereon intended to be bound for the continuing security of the existing deposit. 7. It is not competent for parties to such an undertaking to allege that they were ignorant of the existence of a debt expressly provided for, or that they have been misled by the omission of the principals to notify them of its exist ence. (Decided March 1, 1887.) APPEAL from a judgment of the Supreme at General Term in the Third Department, affirming a judgment entered in Albany County upon report of a referee in favor of plaintiff in an action on contracts of guaranty. Affirmed. The facts and questions raised appear from the opinion. Mr. Eugene H. Lewis, for appellants. I. The undertakings of 1880 and 1881 are void as to the defendants, and no action can be sustained upon them. At the time of the execution of the undertakings, respectively, the bank was indebted to the plaintiff in large sums for deposits of canal tolls in previous years, which it had never paid over. This fact was not known to the defendants. There was no recital of it in the undertakings themselves. Neither the agents of the plaintiffs nor the officers of the bank disclosed it to them. If they had known the fact, they would not have signed the undertakings. Their contract was, therefore, entered into under mistake of fact, from which they will be relieved by a court of equity. Bisph. Eq. § 189; Pom. Eq. Jur. §§ 839, 856; California Civ. Code, § 1577; Kelly v. Solari, 9 Mees. & W. 54; Lucas v. Worswick, 1 Moody & Rob. 293: Townsend v. Crowdy, 8 C. B. N. S. 477; Barber v. Brown, 1 C. B. N. S. 121; Dails v. Lloyd, 12 Ad. & El. N. S. 531; Bell v. Gardiner, 4 Man. & G. 11; Evans v. Llewellyn, 2 Bro. Ch. 150; Bingham v. Bingham, 1 Ves. 126; Broughton v. Hutt, 3 DeG. & Jones, 501; Smith v. Mackin, 4 Lans. 41; Allen v. Mayor, 4 E. D. Smith, 404; Waite v. Leggett, 8 Cow. 195; Union Nat. Bank v. Sixth Nat. Bank, 43 N. Y. 452; Duncan v. Berlin, 46 N. Y. 685; Law |