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SECTION 456. Appeal from order at special term, on a summar y applica tion after judgment.

457. Writ of error abolished, and appeal substituted.

458. Execution on judgment docketed prior to July 1, 1848.
459. Application of this act to actions pending. Extraordinary


460. Appeal from certain final decrees allowed.

461. Issue of fact in county court, how tried.

§ 456. Appeal from order at a special term, on summary application after judgment.

The appeal mentioned in section 9 of the act to facilitate the determination of existing suits in the courts of this State, may also be taken from an order made at special term, on a summary application in an action after judgment, when such order involves the merits of the application, or some part thereof.

Laws 1849, ch. 439.

$ 457. Writ of error abolished.

No writ of error shall be hereafter issued in any case whatever. Wherever a right now exists to have a review of a judgment rendered, or order or decree made, before the first day of July, 1848, such review can only be had upon an appeal taken in the manner provided by this act ; and all appeals heretofore taken from such judgments, orders, or decrees, under the provisions of the code of procedure, which are still pending in an appellate court, and not dismissed, shall be valid and effectual. But this section shall not extend the right of review to any case or question to which it does not now extend, nor the time for appealing, nor shall it apply to a case where a writ of error has been already issued.

a. This section authorizes a review only in cases where the judgment, decree, or order appealed from, was entered before the code was passed, and where a right of review existed by the previous law (Dunlop v. Edwards, 3 Code Rep. 197).

$458. Execution on judgment docketed before July, 1848. An execution may be issued without leave of the court upon a judgment docketed before the first day of July, 1848, or now or hereafter to be rendered in an action pending on that day, at any time within five years after the rendering of the judgment.

See sections 283, 284.

§ 459. (Am'd 1851.) Application of this act to actions pending. Extraordinary terms.

The provisions of this act apply to future proceedings in actions or suits heretofore commenced, and now pending, as follows: 1. If there have been no pleading therein, to the pleadings and all subsequent proceedings;

2. When there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings;

3. After a judgment or order, to the proceedings to enforce, vacate, modify, or reverse it, including the costs of an appeal. Whenever the judges of the supreme court in any district find that the court, at any term or circuit, has not been, or will not be, able to dispose of all the cases upon the calendar, they may request the governor to assign other judges, and, if necessary, appoint extraordinary terms and circuits, for the purpose of disposing of such cases. The governor may thereupon make such assignment, and the judges assigned must hold the courts accordingly.

a. This section applies to a notice of trial (Reynolds v. Davis, 2 Abb. 163; and see Fellows v. Emperor, 13 Barb. 92; Fielden v. Lahens, 3 Trans. App. 223).

$460. (Am'd 1851, 1852, 1858) Appeal from certain final decrees allowed.

An appeal may be taken from any final decree entered upon the direction of a single judge, in any suit in equity pending in the supreme court, on the first day of July, 1847, at any time before the first day of November, 1852. But this provision shall not apply to cases where a rehearing has already been had or ordered, or to the case of a decree entered before the passage of this act, and to review which no attempt in good faith has been or shall have been made within thirty days after notice of the

entry of such decree. Such appeal shall be taken in the manner provided in sections 327 and 348. In all cases of appeal to the court of appeals, in actions which were originally commenced in the late court of chancery of this State, the court of appeals shall review the cause upon the facts and the law, without any statement or specification of facts found, or any exception taken at the trial of any or either of them. And it shall be, and is hereby declared to be, the duty of the court of appeals, in any and all such cases, to review the whole matter upon the evidence as well as the law.

a. This section is not unconstitutional; it is merely a provision extending the time for bringing an appeal. It affects the remedy only (Burch v. Newbury, 4 How. 145; 10 N. Y. 374; and see Mason v. Jones, 1 Code Rep. N. S. 335). In an equity suit commenced before the code took effect, the mode of reviewing a decision of a single judge is by an appeal, and not by a rehearing (Gilchrist v. Stevenson, 7 How. 273).

c. An action commenced under the judiciary act, in the supreme court in equity, is not an action "commenced in the late court of chancery," so as to admit a review of the evidence under this section (Griffith v. Merritt, 19 N. Y. 529; see McIntyre v. Warren, 3 Keyes, 185).

§ 461. Issue of fact in county court, how tried.

An issue of fact joined in a county court, or court of common pleas, before the first day of July, 1848, or then pending in that court on appeal, shall be tried by a jury, unless the parties otherwise agree.


General Provisions.

SECTION 462. Definition of real property.
463. Definition of personal property.
464. Definition of property.

465. Definition of district.

466. Definition of clerk.

467. Rule of construction.

468. Inconsistent statutory provisions repealed.
469. Inconsistent rules and practice abrogated.

470. Judges to meet and make general rules.

471. Certain proceedings and statutory provisions not affected by this act.

472. Certain statutes repealed.

473. Act, when to take effect.

$ 462. Definition of "real property."

The words "real property," as used in this act, are co-extensive with lands, tenements and hereditaments.

$463. Definition of" personal property."

The words "personal property," as used in this act, include money, goods, chattels, things in action, and evidence of debt.

a. A claim for service rendered is not personal property, within the meaning of this section (The People v. Hulbert, 1 Code, Rep. N. S. 75).

b. A right of action for a tort is not, but a right of action on contract to recover damages the subject of computation only, is property (Ten Broeck v. Sloo, 2 Abb. 234).

c. Growing hops held to be chattels (Frank v. Harrington, 36 Barb. 415). d. Negotiable paper is personal property (Ballard v. Webster, 9 Abb. 404). See ante, p. 338, f.

§ 464. Definition of "property."

The word "property," as used in this act, includes property real and personal.

e. An office is not property (37 N. Y. 518).

§ 465. Definition of "district.”

The word "district," as used in this act, signifies judicial district, except when otherwise specified.

$466. Definition of" clerk."

The word "clerk," as used in this act; signifies the clerk of the court where the action is pending, and in the supreme court, the clerk of the county mentioned in the title of the complaint, or in another county to which the court may have changed the place of trial, unless otherwise specified.

a. An official statute certificate, signed by a deputy clerk without stating that the clerk was absent,-held sufficient (4 How. 353; Lynch v. Livingston, 6 N. Y. 422). See note to § 312.

§ 467. Rule of construction.

The rule of common law, that statutes in derogation of that law are to be strictly construed, has no application to this act.

§ 468. (Am'd 1849.) Statutory provisions, inconsistent with this act, repealed.

All statutory provisions, inconsistent with this act, are repealed; but this repeal shall not revive a statute or law which may have been repealed or abolished by the provisions hereby repealed. And all rights of action given or secured by existing laws may be prosecuted in the manner provided by this act. If a case shall arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this act, the practice heretofore in use may be adopted so far as may be necessary to prevent a failure of justice.

$469. (Am'd 1849.)

this act, abrogated.

Rules and practice, inconsistent with

The present rules and practice of the courts in civil actions, inconsistent with this act, are abrogated, but where consistent with this act, they shall continue in force, subject to the power of the respective courts to relax, modify, or alter the same.

b. This section saves the old rules and practice of the court where consistent; but the pleadings are neither part of the rules nor of the practice (Allen V. Smilie, 1 Abb. 357; 12 How. 156.)

c. Under this provision, the former practice of the court for the correction of errors must govern in the court of appeals, where neither the rules of the court of appeals nor the provisions of the code are inconsistent therewith (Hastings v. McKinley, 8 How. 175).

§ 470. (Am'd 1851, 1852.) Judges to meet and make general rules.

The judges of the supreme court, of the superior court of the

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