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THE

CODE OF PROCEDURE,

AS AMENDED TO

MA Y, 1870.

N ACT

To amend an act to simplify and avridge the practice, pleadings, and proceedings 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 abolislred, 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.

$1. Remedies.
Remedies in the courts of justice are divided into,
1. Actions.
2. Special proceedings.

$ 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 offense.

a. What is an action.-A creditor's suit (Quick v Keeler, 2 Sand. 231; Dunham v. Nicholson, ib. 636). A proceeding to dissolve a moneved corporation (Kattenstroth v. Astor Bank, 2 Duer, 632). Quo warranto (The People v. Cook, 8 N. Y. 71; T'he People v. Cla ke, 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 resulting in a judgment (The People v. County Judge of Rensselaer, 18 How. 400). A proceeding by mandamus (The People v. Colborne, 20 How. 378; The People v. Lewis, 28 id. 172).

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); a motion for an injunction (Becker v. Hagar, 8 How. 68); a motion for discovery of books, &c. (Follett v. Weed, 3 How. 303); a foreclosure by advertisement (Hatly. Birilett, 9 Barb. 297); a reference of a claim against the estate of accessėl person (Coe v. Coe, 14 Abb. 86); attachment for contempt (Hulsteini oyi Rice, 15 Abb. 307; Gray v. Cook, 15 Ab'. 308 note); a proceeding to dispossess a tenant (The People v. Hamil ton, 6 Trans. Ap. 219; 39 N:7. 107).

§ 3. Speciąb precediling.
Every other remedy is a special proceeding.

c. Wnät is a special proceeding.-A proceeling on appeal from orders of commissioners of highways (The People v. Flake, 14 How. 527). A proceeding to assess damages on laying out a plank road (Ex parte Ransom, 3 Cođe•R. 148). A proceeding to appraise compensation for lands taken under general railroad act (Re N. Y. Cent. R. R. Co. v. Marvin, 11 N. Y. 277); a proceeding to open streets in New York city, query ( Re the Bowery, 12 How. 97); a common law certiorari (The People v. Stillwell, 19 N. Y. 532; The People v. B'd of Police, 39 N. Y. 521).

d. 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). A proceeding to vacate a local assessment (Re Dodd, 27 N. Y. 629).

$ 4. Division of actions.
Actions are of two kinds :
1. Civil.
2. Criminal.

§ 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 offense, for the punishment thereof.

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$ 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.

Gordon v. Hostetter, 4 Trans. Ap. 381; 37 N. Y. 105.

$ 8. (Am'd 1849). Division of act. This act is divided into two parts : The first relates to the courts of justice, and their jurisdic

tion;

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 (SS 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.

a. The code applies only to suits commenced after the code took effect (Merritt v. Wing, 4 How. 14: Clarke v. Crand ill, ib. 127; Truscott v. King, 4 il. 173; Thompson v. Blanchard, id. 260; Doty v. Brown, id. 429; Van Alen v. Feltz, 1 Keyes, 332. See, however, Kanouse v. Martin, 2 Sand. 739 ; and g 459, post).

B. The code applies to recognizances forfeited in any court of general sessions, or oyer and terminer (Laws 1855, p 305, ch. 2, s. 1)

c. There is no appeal to the superior court (see Wood v. Kelly, 2 Hilton, 336 ; Hawkins v. Mayor of N. Y. 5 Abb. 344).

PART I.

OF THE COURTS OF JUSTICE AND THEIR JURISDICTION.

TITLE I. OF THE COURTS IN GENERAL.

II. OF THE COURT OF APPEALS.
III. OF THE SUPREME COURT, CIRCUIT COURTS, AND COURTS OF OYER

AND TERMINER.
IV. OF THE COUNTY COURTS.
V. OF THE SUPERIOR COURT AND COURT OF COMMON PLEAS IN THE

CITY OF NEW YORK, AND THE MAYORS' AND RECORDERS'

COURTS IN OTHER CITIES.
VI. OF THE COURTS OF JUSTICES OF THE PEACE.
VII.

OF JUSTICES AND OTHER INFERIOR COURTS IN CITIES.

TITLE I.

Of the courts in general. $ 9. (Am'd 1849.) The several courts : The following are the courts of justice of this State: 1. The court for trial of impeachments. 2. The court of appeals. 3. The supreme court. 4. The circuit courts. 5. The courts of oyer and terminer. 6. The county courts. 7. The courts of sessions. 8. The courts of special sessions. 9. The surrogates' courts. 10. The courts of justices of the peace. 11. The superior court of the city of New York. 12. The court of common pleas for the city and county of New

York, 13. The mayors' courts of cities. 14. The recorders' courts of cities. 15. The marine court of the city of New York. 16. The justices' [district] courts in the city of New York. 17. The justices' courts of cities. 18. The police courts. This enumeration is far from complete.

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