Obrázky stránek

priate remedies. The legislature foresaw that there might be instances, like that of Crane v. Sawyer, 1 Code Rep. N. S., 50, in which the forms of proceedings sanctioned by the code could not be applied to the case; and therefore, in such instances, they authorized a procedure under the former system, so far as to prevent a failure of justice. Again, the practice heretofore in use' means the practice which prevailed before the code." Church v. Rhodes, 6 Pr., R., 285.

§ 469. [389.] (Amended 1849.) Rules and practice inconsistent with this act abrogated.

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.

a. 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. Smillie, 1 Abbott, 357.

b. 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 Pr. R., 175.

c. The code has not changed the former practice that an action can only be discontinued by order, and this section preserves this practice. Averill v. Patterson, 10 Pr. R., 85.

d. This section does not abrogate the principles which governed the practice with respect to affidavits to hold to bail, and showing cause of action, and vacating orders to hold to bail. Martin v. Vanderlip, 3 Pr. R., 265.

$ 470. (Amended 1851-1852.) Judges to meet and make general rules.

The judges of the supreme court, of the superior court of the city of New York, and of the court of common pleas for the city and county of New York, shall meet in general session at the capitol in the city of Albany, on the first Wednesday in August, 1852, “and every two years thereafter; and at such sessions shall revise their general rules, and make such amendments thereto, and such further rules, not inconsistent with this code, as may be necessary to carry it into full effect. The rules so made shall govern the supreme court, the superior court of the city of New York, the court of common pleas of the city and county of New York, and the county courts, so far as the same may be applicable.

$ 471. [390.] (Amended 1849–1852.) This act not to affect certain proceedings and statutory provisions.

Until the legislature shall otherwise provide, the second part of this act shall not affect proceedings upon mandamus

or prohibition; nor appeals from surrogates' courts; nor any special statutory remedy not heretofore obtained by action; nor any existing statutory provisions relating to actions not inconsistent with this act, and in substance applicable to the actions hereby provided; nor any proceedings provided for by chapter five of the second part of the revised statutes, or by the sixth and eighth titles of chapter five of the third part of those statutes, or by chapter eight of the same part, excluding the second and twelfth titles thereof, or by the first title of chapter nine of the same part; except that when in consequence of any such proceeding a civil action sball be brought, such action shall be conducted in conformity to this act; and except also, that where any particular provision of the titles and chapters enumerated in this section shall be plainly inconsistent with this act, such provision shall be deemed repealed.

a. The amendment of 1852 is the insertion of the words," the second part of," This section was substituted in 1849 for section 390 in the code of 1848.

6. The following are the provisions of the revised statutes referred to in this section as not affected by the second part of the code :

Ch. V. Pt. 2 of the Revised Statutes. (2 R. S., 4th ed., 186 [1]. Tit. 1. Art. 1. Of attachments against absconding, concealed, and non-resident

debtors. 2. Of attachments against debtors confined for crime. 3. Of voluntary assignments made pursuant to the application of an

insolvent and his creditors. 4. Of proceedings by creditors to compel assignments by debtors im

prisoned on execution in civil causes. 5. Oi voluntary assignments by an insolvent for the purpose of ex

onerating his person from imprisonment. 6. Of voluntary assignments by a debtor imprisoned on execution in

civil causes. 7. General provisions applicable to proceedings under the several

preceding articles. 8. Of the powers, duties, and obligations of trustees and assignees

under this title. 9. Provisions respecting assignees under former insolvent laws. 10. Provisions of the “act to abolish imprisonment for "debt and to

punish fraudulent debtors," passed April 26th, 1831, other than

those which relate to justices' courts. (6 Pr. R., 345). Tit. 2. Of the custody and disposition of the estates of idiots, lunatics, persons of ussound mind, and drunkards.

Ch. V. Pt. 3 of the Revised Statutes. Tit. 6. Of trespass on land. 8. Proceedings to discover the death of persons upon whose lives any particular estate may depend.

Ch. VIII. Pt. 3 of the Revised Stalutes. Tit. 1. Of the bringing and maintaining suits by poor persons,


3. Of suits by and against executors and administrators, and against heirs,

devisees, and legatees. (Olmstead v. Vredenburg, 10 Pr. R., 217.) 4. Of proceedings by and against corporations and public bodies having cer.

taia corporate powers, and by and against officers representing them

(and joint-stock companies). 5. Of suits against sheriffs, surrogates and other officers, on their official bonds. 6. Of actions for penalties and forfeitures, and provisions for the collection and

remiss on of forfeited recognizances aud fines imposed by courts. (See

infra, note c.) 7. Of proceedings for the admeasurement of dower. 8. Of proceedings for the collection of demands against ships and vessels (and

mechanics' liens). 9. Of proceedings for the recovery of rent and of demised premises. 10. Of summary proceedings to recover the possessioa of land in certain cases.

(Benjamin v. Benjamin, 1 Selden, 383.) 11. Of distraining cattle and other chatiels doing damage, and of distraining in

other cases. 13. Of proceedings, as for contempts, to enforce civil remedies, and to protect

the rights of parties in civil actions. (The People v. Compton, 1 Duer.,

512; Re Smethurst, 3 Code Rep., 55; 2 Sand., 724.) 14. Of arbitrations. 15. Of the foreclosure of mortgages by advertisement. 16. Of proceedings for draining of swamps, marshes, and other low lands. 17. General miscellaneous provisions concerning suits and proceedings in civil 18. Proceedings to change the names of parties.

Ch. IX. of the Revised Statutes.
Tit. 1. Of the writs of habeas corpus and certiorari in certain cases.

a. The provisions of the revised statutes “of proceedings by and against corporations in courts of law.” (R. S. Part III. Tit. 4. Ari. 1), remain in force, " though probably the pleadings and practice, except where otherwise specially provided should be under the code. These suits (suits under the code and the revised statutes) are not alike in all respects. The circumstances under which they may be commenced are not the same. And the bond in one case is for costs, and in the other the undertaking is for costs and damages; and in one suit it would seem to be for the benefit of the plaintiff, -other creditors are allowed to share in the proceeds of the other. (Code s. 237.) In one case I think there must be an application, and an affidavit and an attachment must issue ; in the otber none of these seem to be necessary to the prosecution of the suit." Hand, J., Bank of Commerce v. Rulland and Wash. R. R. Co., 10 Pr. R., 5.

b. What is the effect of this section on proceedings to dissolve a moneyed corporation ? Kattenstroth v. The Astor Bank, 2 Duer, 032.

c. This section (471) declared that the code should not apply to proceedings on forfeited recognizances; but by laws of 1855, ch. 202, p 305, it is enacted, (8. 1) that all the provisions of the code are to apply to all recognizances perfected in any court of general sessions or of oyer and terminer; and (s. 2) all laws or parts of laws or provisions of statutes in anywise conflicting with such application of the provisions of the code to said forfeited recognizances, are repealed.

d. “It is not clear what is meant by bringing an action in consequence of any such proceedings. It cannot be an action of ejeciment after partition, for this would have been so as a matter of course. The more reasonable construction is, that the proceedings are to be conducted as suits under the code, except that when they are not provided for in that, the former statute remains in force.” Per Hand, J., in Watson v. Brigham, 3 Pr. R., 290; 1 Code Rep., 67.

e. By this section, all proceedings upon appeals from surrogate's courts are entirely excluded from the operation of any of the provisions in the code; they must be governed by other statutes. Sherman v. Young, 6 Pr. R., 318.

f. This section preserves the petition for admeasurement of dower, but a party


may either adopt the petition or the summons and complaint, Townsend v. Townsend, 2 Sand, 713; and sections 24 and 25 of 2 R. S. 617, are retained by this. section. Murray v. Haskins, 4 Pr. R., 263, and see note to section 303; and 2 R S., 252, s. 74, 75, are retained by the code. McGown v. Morrow, 3 Code Rep., 9.

“The true principles applicable to the titles named in this section, are: Where the title creates the proceeding and contains full directions as to the form and mode of conducting it, or where the title modifies a common-law remedy, so as to make it essentially new and statutory; in such cases the right and remedy remain unsepara. ted and unaltered. But where the titles merely provide for proceedings preliminary to an action, or establish certain principles of law or rules of evidence, to govern suits between certain parties, under certain circumstances, without materially affecting the form of the action or manner of conducting it in other respects,—there the proceedings are retained and applied to the new system, and the action, not depending upon the old statute, is to be conducted in conformity with the code. In the latter class may be placed, the statutes in relation to suits by poor persons, by and against administrators, fixing the damages for trespass in certain cases, &c.; which do not seriously affect the forms of action, but are as applicable to the new system as to the old. In the former class may be placed, proceedings in partition ; proceedings against corporations in courts of law, admeasurement of dower, proceedings for the collection of demands against ships and vessels, forcible entries and detainers, writ of nuisance, and actions of waste; all of which are either entirely creatures of the statute, by which the right and remedy are made inseparable, or are common, law actions, so far modified by the statute as to be inconsistent with any other general form of remedy.” Per Barculo, J., in Traver v. Traver, 1 Code Rep., 112.

See also sections 108, 109, 449, and supreme court rule 89.

$ 472. Certain parts of revised and other statutes not repealed.

Nothing in this act contained shall be taken to repeal section 23 of article 2 of title 5 of chapter 6, part 3d, of the revised statutes, or to repeal an act to extend the exemption of household furniture and working tools from distress for rent and sale under execution, passed April 11, 1842.

$ 473. [391.] (Amended 1849.) This act when to take effect.

This act shall take effect on the first day of July, 1848; except that sections 22, 23, 24, and 25, shall take effect immediately.

b. The code, passed 11th April, 1849, took effect twenty days after its passage. The last this section of the code should be considered as a portion of the original code, and applicable to such portions of the amended code as existed prior to April 11, 1849. But considering the amended code as a substitute for the original, to take effect on 1st of July, 1848, would be to give it a retrospective effect, contrary to the settled principles applicable to the construction of statutes. Gamble v. Beattie, 4 Pr. R., 41.



To amend an act entitled " An act to facilitate the determination of existing swits in the courts of this State."

Passed April 11, 1849. The People of the State of New York, represented in Senate and Assembly, do enact as follows :

The act entitled " An act to facilitate the determination of existing snits in the courts of this State," passed April 12, 1848, is hereby amended so as to read as follows:

§ 1. (Amended 1849.)

The act to simplify and abridge the practice, pleadings, and proceedings of the courts of this State, passed April 12, 1848, and amended at the present session of the Legislature, is herein designated as the “ Code of Procedure.”


Provisions relating to the Courts in general.

Chapter 1. Sections of the Code of Procedure referred to and applied to

existing suits.
2. Other provisions relating to existing suits.


Sections of the Code of Procedure referred to and applied to

existing suits. $ 2. (Amended 1849.)

The provisions of the Code of Procedure, contained in the following sections thereof, are hereby applied, so far as the

« PředchozíPokračovat »