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To note to section 165. The answer may allege that publication was true as a defence together with matter tending to prove its truth in mitigation. Bisbey v. Shax, 2 Kernan, 67.
To note to section 383. Stating an setting out a promissory note signed by the defendant is not a sufficient statement. Chappel v. Chappel, 2 Kernan, 215.
CODE OF PROCEDURE.
[The figures within brackets, placed after the number of the section, are the num ber of the corresponding section in the code of 1848.]
To amend the act entitled '“ An act to simplify and abridge the
practice, pleadings, and proceedings of the courts of this State," passed April 12, 1848.
Passed April 11, 1849.
The act entitled “An act to simplify and abridge the practice, pleadings, and proceedings of the courts of this State," passed April 12, 1848, is hereby amended so as to read as follows:
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 abolishedand that the distinction between legal and equitable remedies should no longer continue, and that a 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.
§ 1. [1.] Remedies.
2. Special proceedings.
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. Tbis section in the code of 1848, instead of the words in italic, had these words, "a regular judicial proceeding,' and per Barculo, J., “the word regular cannot be fairly applied to statutory proceeding unknown to the common law?"Traver v. Traver, 3 Pr. R., 351, 353. But per Gridley, J., " An action given by statute may be just as regular as an action of common law origin.” Myers v. Ras. back, 2 Code Rep., 13—4 Pr. R., 83, 85; Myers v. Borland, ib., and per Barculo, J., “I certainly had no doubt whether a suit for partition of lands was a regular judicial proceeding,' I did intend to say that proceedings by petition for partition were not merged in the legal actions of the code.” Row v. Row, 4 Pr. R., 133.
b. Perhaps a proceeding to dissolve a moneyed corporation is an action ? Kal. tenstroth v.The Astor Bank, 2 Duer, 632.
c. An application for an injunction is not an ordinary proceeding in a court of justice. Becker v. Hagar, 8 Pr. R. 68.
d. A creditor's suit is undoubtedly an action within this definition. Quick v. Keeler, 2 Sand. 231. But in Dunham v. Nicholson, ib., 636, this dictum was qualified ; and it is there said, “Though it (a creditor's suit) assumes the form of an action, it is really a proceeding to carry out an existing judgment."
e. The proceeding to obtain a discovery of books, &c., is not an action, per Sill, J., in Follett v. Weed, 3 Pr. R., 303, 304; 1 Code Rep., 65.
4. A proceeding for partition of land is clearly an action, per Harris, J. in Backus v. Stillwell, 3 Pr. R. 318; 1 Code Rep., 70 ; and per Gridley, J. in Myers v. Rasback, 2 Code Rep., 13; 4 Pr. R. 83. Myers v. Borland, ib. But, per Barculo, J., the proceedings in question have never been deemed, treated, or called a legal action; the Revisers in their notes say, they resemble more“ a bill in equity than an action at law;" which clearly implies that they are neither. Traver v. Traver, 3 Pr. R., 351, 353.
$ 3. [3.] Special proceeding.
b. The proceeding supplementary to an execution is a special proceeding, per Willard, J., in Davis v. Turner, 4 Pr. R., 190, 192; and the proceeding to assess damages on the laying out of plank roads under chapter 210 of the laws of 1847, is most undoubtedly what under the code is denominated a “special proceeding,” per Mason, J. Er parte Ransom, 3 Code Rep., 148. Cited and approved 1 Kernan 277.
§ 4. [4.] Division of actions. Actions are of two kinds :
2. Criminal. § 5. [5.] (Amended 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.
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.] (Amended 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 1st day of July, 1848, except when otherwise provided therein, and is distributed into fifteen titles. The first four 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 mayors' courts of cities, and in the recorders' courts of cities, and to appeals to the court of appeals, to the supreme court, to