AuthorNewman, Thomas R.

The year 2022 marks the 175th anniversary of the founding of the New York Court of Appeals (the "Court"), created by the Constitution of 1846 to replace the Court for the Trial of Impeachments and Correction of Errors as the highest court in the state. (1) Designed originally as a second tier of appellate review above the former General Term of the Supreme Court, it first met on July 5, 1847, and from the outset, was beset by a very heavy workload and a large backlog of inherited cases. (2) For almost two centuries, efforts focused on limiting that workload have sought a balance between the capacity of the Court's judges to devote the time and study necessary to thoughtfully decide the appeals before them, against the need to permit appeals presenting significant issues of state-wide import to get onto the Court's calendar: two methods used to strike that balance have been adding more judges and/or limiting the Court's jurisdiction. (3)

Calendar year 2021 appears to have recorded the lowest number of matters decided by the Court on the merits, after argument or submission, in its entire history--only eighty-one. (4) In 2020, the Court decided ninety-six, (5) and in 2019, 108. (6)

How that came to pass becomes clear from a brief recounting of the development and refinement of the jurisdiction of the Court and in reviewing the comprehensive statistical record of its work, compiled in the Annual Reports of its Clerk since 1981. Important issues are raised about the role of the Court and its capacity to advance the cause of appellate justice in New York.


    When the Court began work in 1847 (7) it inherited a backlog of about 1,500 appeals (8) that were finally disposed of in 1875 with the aid of a temporary Commission on Appeals having coequal powers with Court of Appeals' judges that lasted five years. (9) Under the Code of Civil Procedure of 1850 (the so-called "Field Code") (10) an appeal as of right could be taken to the Court from, inter alia, a final judgment in a civil action or final order, which affected a substantial right, in a special proceeding made at a general term by the supreme court, the superior court or the court of common pleas of the City of New York. (11) In criminal cases, an appeal as of right could be taken to the Court of Appeals from a judgment of the Supreme Court affirming a judgment of conviction of a criminal court. (12) These broad grants of jurisdiction taxed the capacity of the Court. In 1888, a Constitutional Amendment authorized the Governor, upon certification by the Court that an overcrowded calendar existed, to assign seven supreme court justices, known as the Second Division of the Court of Appeals, to aid the Court until it certified such aid was no longer needed. (13) By 1892, the Second Division had completed its assigned work and was disbanded. (14)

    The Constitutional Convention of 1894 considered the problems of appellate justice in the state and proposed two major reforms. (15) It created the Appellate Division as a permanent, full-time intermediate appellate court with broad power to review questions of law, fact, and discretion arising on appeals from judgments or orders of trial courts. (16) Its four departments were intended to provide litigants at least one appeal as of right in which all such issues could be raised and reviewed. (17) The other major reform limited the Court of Appeals' jurisdiction and focused on unifying, clarifying, and pronouncing the law of the state rather than considering the justice of particular cases on their facts--a function, except in capital cases, assigned to the new Appellate Division. (18) The Appellate Division was given authority to grant motions for leave to appeal "upon any question of law which, in its opinion, ought to be reviewed by the Court of Appeals." (19)

    By subsequent amendment, the Constitution's Judiciary article now provides leave to appeal in civil cases may be granted by the Appellate Division or Court of Appeals, and "[s]uch an appeal shall be allowed when required in the interest of substantial justice." (20)

    At the time of the 1894 constitutional convention a backlog of about 175 appeals had developed but it was estimated, rightly, that number might increase to 300 or 400 by the time the new constitution would become effective in January 1896. (21) At the general election in November 1899 the state's voters approved another constitutional amendment proposed by the legislature addressing the growing backlog. (22) It permitted the governor, at the request of a majority of the judges of the Court, to designate up to four justices of the supreme court to serve as associate judges of the Court of Appeals until its calendar of pending appeals was reduced to below 200. (23) No more than seven judges could sit on one appeal, but the designation of additional judges would reduce the number of cases upon which each would be called to sit. (24)

    Designations of additional associate judges were made under that provision but by 1915 a calendar of some 600 cases had accumulated and the average time between filing and argument was about two years. (25) A constitutional convention held in 1915 again considered the problem of the Court's workload but its proposal was defeated by the voters. (26)

    In 1917 the legislature addressed the problem with legislation. (27) The Constitution of 1894 forbade the legislature from enlarging the Court's jurisdiction but did not prohibit it from reducing it. (28) Appeals to the Court of Appeals had long been permitted as of right from a final judgment in a civil action and a final order affecting a substantial right in a special proceeding after that judgment or final order had been reviewed by the General Term or its successor, the Appellate Division. (29) Aggrieved parties who had suffered an affirmance in the intermediate appellate court could appeal as of right to the Court of Appeals. (30) The 1917 legislation changed this; appeals as of right were limited to cases directly involving the construction of the constitution of the state or United States, or where one or more justices of the Appellate Division dissented from the decision of the Court, or there was a reversal or modification, or the Appellate Division ordered a new trial and the appellant stipulated for judgment absolute. The right to appeal in the event of a unanimous affirmance in the Appellate Division was abolished. (31)

    After the change to the civil jurisdiction of the Court of Appeals was effected, service of additional judges under designations by the governor continued until June 1923 when the Court's calendar was current. (32) Despite backlogs that accrued in later decades, and although the Constitution still provides the ability to designate additional associate judges to serve on the Court, (33) the authority to do so has remained unused since that time. (34)

    Until 1926, all appeals in criminal cases, including appeals to the Court of Appeals, could be taken as of right. (35) That year the Code of Criminal Procedure was amended to provide that, in any non-capital case, an appeal to the Court of Appeals, following one appeal to an intermediate court, could only be taken by permission of a judge of the Court of Appeals or justice of the Appellate Division (not by the courts). (36) Unlike the practice in civil appeals, no more than one application can be made. (37) The Code of Criminal Procedure was repealed and replaced by the Criminal Procedure Law in 1970, (38) which continues the requirement that leave to appeal to the Court of Appeals be obtained in non-capital cases. (39)

    In 1981, confronted with a crushing and increasing caseload, the Court requested the American Judicature Society to undertake a study to assess the need for change in the jurisdiction of New York's appellate courts. (40) A study group appointed by the Society issued Appellate Justice in New York, the so-called MacCrate Report, in 1982. (41) Among its recommendations, the MacCrate Report proposed eliminating civil appeals to the Court of Appeals as of right from a final judgment based on a reversal, single dissent, or any modification at the Appellate Division. (42) Such appeals comprised 52.4% of the Court's docket in 1985. (43)

    In 1985, the legislature acted upon that recommendation, amending CPLR 5601(a), effective January 1, 1986, to provide instead that an appeal could be taken as of right in the event of a dissent on the law by two justices of the Appellate Division. (44)

    The 1985 legislation completed the slow transformation of the Court of Appeals from its founding in 1847 as a court of last resort of general appellate jurisdiction to which appeals could be taken as of right, to one whose jurisdiction is almost entirely limited to the review of issues of law and to which the great majority of appeals may only be taken by permission. (45)


    The end product of an appellate court is its decisions disposing of appeals before it. The work required to create those decisions constitutes its caseload. But the overall workload of an appellate court includes, inter alia, consideration and disposition of motions. All appellate courts are faced with the ordinary mix of procedural motions, but a court whose caseload is mostly permissive is also faced with large numbers of motions for leave to appeal that require an initial examination of the issues proposed for its review and the merits of the arguments concerning them.


    When, beginning in 1986, most civil appeals could be taken only by permission, the number of civil dispositions after argument or submission immediately dropped from 568 in 1985 to 350 in 1986 and 230 in 1987 as appeals taken as of right under the former statute worked their way through the appellate process. (46) By 2020, the Court's total annual dispositions fell below 100 for the first time in its history, (47) in...

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