NOTE TO NINTH EDITION.

Following the Index are " ADDITIONAL NOTES," arranged accord-

ing to the numerical order of the sections of the Code and the paging

of the book. Each additional note refers conspicuously to the section

of the Code and the preceding page to which such additional note

applies.

After consulting the body of the work, reference should in every

case be had to the "Additional Notes." Their arrangement makes
such a reference a matter easy to accomplish.

Besides these additional notes, in an Appendix will be found the

Amendments to the Code of Procedure made in the years 1865 and

1866.

THE

CODE OF PROCEDURE.

AS AMENDED TO MAY 1864,

WITH AMENDMENTS OF 1865 AND 1866 IN APPENDIX.

[The figures within brackets, placed after the number of the section, show

the number of the corresponding section in the Code of 1848.]

AN ACT

To simplify and abridge the practice, pleadings, and proceed-
ings of the courts of this State.

WHEREAS, it is expedient that the present forms of actions and
pleadings in cases at common law should be abolished, that
the distinction between legal and equitable remedies should
no longer continue, and that an uniform course of proceeding,
in all cases, should be established; therefore,

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

GENERAL DEFINITIONS AND DIVISIONS.

SECTION 1. Division of remedies.

2. Definition of an action.

3. Definition of a special proceeding.

4.

Division of actions into civil and criminal.

5. Definition of a criminal action.

6. Definition of a civil action.

7.

Civil and criminal remedies not merged in each other.

8. Subjects embraced in this act.

81. [1.] Remedies.

Remedies in the courts of justice are divided into,

1. Actions.

2. Special proceedings.

82. [2.] (Am'd 1849.)

Action.

An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence.

a. WHAT IS AN ACTION :

A creditor's suit (Quick v. Keeler, 2 Sand. 231; Dunham v. Nicholson, ib. 636).

A proceeding for partition (Backus v. Stillwell, 3 How. 318; 1 Code R.
70; Myers v. Rasback, 2 Code R. 13; 4 How. 83; Myers v. Borland, ib.;
qualified, Traver v. Traver, 3 ib. 351).

A proceeding to dissolve a moneyed corporation (Kattenstroth v. Astor
Bank, 2 Duer, 632).

Quo warranto (The People v. Cook, 4 Selden, 71; The People v. Clarke, 11
Barb., 337).

Scire facias (Cameron v. Young, 6 How., 372; Alden v. Clark, 12 ib., 212).
A proceeding to determine adverse claims to real property (Mann v.
Provost, 3 Abb. 446).

Any judicial proceeding which, if conducted to a determination, will
result in a judgment (Harris, J. The People v. County Judge of Rennse-
laer, 13 How. 400.)

A proceeding by mandamus (The People v. Colborne, 20 How. 378.)
A summary proceeding by a landlord to dispossess a tenant (Deuel v.
Rust, 24 Barb. 444).

b. WHAT IS NOT AN ACTION :—

A proceeding under section 376 of the Code (Mills v. Thursby, 2 Abb.
432).

A proceeding under section 372 of the Code (Lang v. Ropke, 1 Duer 702).
An application for an injunction (Becker v. Hagar, 8 How. 68).

A proceeding to obtain discovery of books, &c. (Follett v. Wed, 3 How.
303; 1 Code R. 65).

A proceeding to foreclose a mortgage by advertisement (Hall v. Bartlett,
Barb. 297).

A reference of a claim against the estate of a deceased person (Coe v.
Coe, 14 Abb. 86).

A proceeding to attach for contempt (Holstein v. Rice, 15 Abb. 307; Gray
v. Cook, 15 Abb. 308 note).

§ 3. [3.] Special proceeding.

Every other remedy is a special proceeding.

C. WHAT IS A SPECIAL PROCEEDING.

A proceeding before referees appointed to hear appeals from orders of
Commissioners of Highways (The People v. Flake, 14 How. 527).

A proceeding to assess damages on the laying out a plank road under
Laws of 1847, ch. 210 (Ex parte Ran om, 3 Code R. 148).

A proceeding by commissioners to appraise compensation for lands to be
taken under the general Railroad Act (Re N. Y. Cent. R. R. Co. v.
Marvin, 1 Kernan, 277).

A proceeding to open streets in New York city, query (Re the Bowery, 12 How. 97.)

A certiorari (The People v. Stillwell, 19 N. Y. 532).

A proceeding to attach for contempt (Holstein v. Rice, 15 Abb. 307;
Gray v. Cook, 15 Abb. 308 note).

a. WHAT IS NOT A SPECIAL PROCEEDING.

A proceeding supplementary to an execution (Dresser v. Van Pelt, 15
How. 19; contra, Davis v. Turner, 4 id. 190).

84. [4] Division of actions.

Actions are of two kinds :

1. Civil.

2. Criminal.

§ 5. [5.] (Am'd 1849.) Criminal action.

A criminal action is prosecuted by the people of the State, as a party, against a person charged with a public offence, for the punishment thereof.

§ 6. [6.] Civil action.

Every other is a civil action.

$7. [7] Remedies not merged.

Where the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged

in the other.

§ 8. [8.] (Am'd 1849.) Division of act.

This act is divided into two parts:

The first relates to the courts of justice, and their jurisdiction;

The second relates to civil actions commenced in the courts of this State after the first day of July, 1848, except when otherwise provided therein, and is distributed into fifteen titles. The first four [S$ 69 to 126, both inclusive] relate to actions in all the courts of the State; and the others, to actions in the supreme court, in the county courts, in the superior court of the city of New York, in the court of common pleas for the city and county of New York, in the mayor's courts of cities, and in the recorders' courts of cities, and to appeals to the court of appeals, to the supreme court, to the county courts, and to the superior court of the city of New York.

b. This section limits the provisions of the code to proceedings in suits com menced after the code took effect. (Merrit v. Wing, 4 How. 14; Clarke v. Cran