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OF SPECIAL PROCEEDINGS.
OF SPECIAL PROCEEDINGS IN GENERAL.
In strictness, few, if any, of the remedies coming under this description, fall within the subjects proposed to be treated of in this work. Though formally saved by the Code, and recog. nized in the division of remedies proposed at the outset, the practice in them is, nevertheless, of a wholly different nature, and governed by different principles from those which regulate proceedings under that measure. Where, therefore, this is wholly the case, and where those proceedings are governed exclusively by the rules of the former practice, or by their own peculiar regulations, any detailed notice of them would be incompatible with the principles laid down at the outset. Nothing beyond a bare enumeration of proceedings of this class, and a bare reference to the statutory provisions on the subject, will, therefore, in these cases, be attempted. Where, however, such proceedings have any direct bearing upon the practice under the Code, they will be considered more fully.
The general saving of proceedings of this nature, is carried out by sec. 471, as follows:
§ 471. 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 eight 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 shall be brought, such action shall be conducted in conformity to this act; and except, also, that where any particular provisions of the titles and chapters enumerated in this section shall be plainly inconsistent with this act, such provision shall be deemed repealed.
The following observations are made by Barculo J. in Traver v. Traver, 3 How. 351, 1 C. R. 112, in reference to the pro
eedings here saved. “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 unseparated 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 the 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 may be ranked proceedings in partition, proceedings for the collection of demands against ships and vessels, forcible entries and detainers, writs 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."
As regards the particular subject of proceedings in partition, this case is overruled, but the general classification adopted in it, is valuable and apposite, and will throw much light upon the subject in general, if strictly adhered to.
The following definitions on the subject of special proceedings, appear in recent cases :
In Frees v. Ford, i C. R. (N. S.) 413, it was held that the term “ special cases,” as used in the constitution, in reference to the jurisdiction of county courts, “ does not mean only those proceedings which, under our statutes, have obtained the technical name of “ special proceeding,” but such cases as the legislature may specify, contradistinguished from general jurisdiction."
In Genin v. Tompkins, 1 C. R. (N. S.) 415, it was held that orders in relation to provisional remedies, did not fa!l within the definition of orders made in special proceedings, so far as regards their appealability. “The provisional remedies specified in the Code, are not the special proceedings therein mentioned."
The following are the subjects of the reservations made by section 471, as above cited.
The statutory provisions on the subject of mandamus and prohibition, will be found in art. III. title II. chap. IX. part III. of the Revised Statutes, 2 R. S. 586 to 589. The old practice, on these subjects, is still subsisting.–The People v. The Supervis sors of Dutchess County, 3 How. 379, and The People ex rel. Gale v. Trustees of School District, 6 How. 332, may be referred to as recent cases.
Appeals from surrogates' courts, and the statutory enactments thereon, have been already referred to, under the head of Appeals to the Supreme Court, from an Inferior Jurisdiction..
The proceedings provided for by chap. V. part II. of the Revised Statutes, so saved as above, contain the statute law as to insolvency and its incidents, and also as to the custody of the estates of lunatics and drunkards, 2 R. S. 1 to 56, and likewise as to the different special proceedings arising thereout, which are governed in all respects by those enactments, and by the old practice,
Those in the 6th and 8th titles of chap. V. part III. relate to trespass on lands, and proceedings to discover the death of cestuis que vie, where suspected.— V.2 R. S. 338, 339, and 343 to 347. The former belong to the first class, as laid down in Traver v. Traver above cited : the latter to the second.
The two titles excluded from chap. VIII. part III. of the Revised Statutes, as above cited, are as follows: Title II. Proceedings by or against infants. Title XII. Proceedings in replevin: the provisions on both of which subjects are remodelled and incorporated in the Code.
The portions of that chap. (VIII.) which are still saved by the section now under consideration, are as follows: Title I. As to suits in formâ pauperis. III. Suits by and against executors and administrators, and against heirs, devisees, and legatees. IV. By and against corporations, or public bodies having corporate powers, or the officers representing them, (including provisions for their voluntary dissolution.) V. Suits against officers on their official bonds. VI. Do. for penalties, and forfeitures, and provisions for the collection and remission of forfeited recognizances and fines imposed by courts. VII. Proceedings for the admeasurement of dower. VIII. Proceedings for the collection of demands against ships and vessels. IX. Proceedings for the recovery of rent and of demised premises ; (as regards the power of distress, however, these provisions are abolished by c. 274 of the laws of 1846.) X. Summary proceedings to recover the possession of land in certain cases. XI. Distress on cattle, &c., damage feasant. XIII. Proceedings to punish contempts. XIV. Arbitrations. XV. Foreclosure of mortgages by advertisement. XVI. Proceedings for the draining of swamps and low lands. XVII. Miscellaneous provisions, relative to proceedings of the above nature in general; and XVIII. Provisions as to the lien of mechanics, &c., on buildings erected by them.
The above various provisions will be found at 2 R. S, from p. 444 to 559 inclusive. A variety of them fall within the first class as laid down in Traver v. Traver, and are rather definitions, or applications of the law on certain subjects, than special proceedings, in the restricted definition of the term, and, as such, they have been heretofore noticed, where applicable to proceedings under the Code. Others, on the contrary, are special proceedings in the strictest acceptation of the word, and, as such, are governed by the enactments in question, and conducted according to the rules, and by means of the forms laid down in the books of the old practice, which should be referred to accordingly. Such of them as relate to real estate, will be shortly noticed in a succeeding chapter.
The last on the list, viz., the lien of mechanics on buildings erected by them, has been recently made the subject of special enactment, as regards the city of New York, by act of 11th July, 1851, c. 513, Laws of 1851, page 953. In relation to the same law as regards other cities, V. c. 305 of Laws of 1844, amended by c. 517 of those of 1851.
The proceeding, though commencing as a special remedy, assumes, in its progress, many of the forms of an action, and the practice in it has been made the subject of recent decision. It is originally commenced by the filing of a claim in the county clerk's office, with notice of such claim to the party liable. So far, the matter is strictly a special remedy, and has no effect, beyond creating a charge on the property affected. If, however, the account be disputed, or payment be delayed, either party may serve on the other a notice, in order to enforce or bring such lien to a close.
From this point, the proceeding assumes the nature of an ordinary action, and must be so conducted. Thus, in Smith v. Maince, 1 C. R. (N. S.) 230, a notice to enforce having been served, it was held that the mere service of such a notice, and appearance of the parties, was not sufficient; and the following order was made: “ The mechanic must file his complaint, as in an ordinary action, within ten days herefrom; and the owner will have the usual twenty days to answer. The cause then proceeds like any other action." In Reynolds v. Hamil
, 1 C. R. (N. S.) 230, where the owner, on receiving the original notice of filing the lien, paid the amount, it was held no costs were payable. The mere docketing the lien was not a commencement of a suit. “ The commencement of a suit under this act, is the service of the notice provided for in sec. 4, requiring the owner to appear and submit to a settlement. No such notice was served in this case, and no suit was therefore commenced.”
In Smith v. Maince, 1 C. R. (N. S.) 283, an answer by the owner, that the work claimed on was performed before the passage of the act of ilth July, 1851, above referred to, was refused to be stricken out as frivolous.
The existence of prior liens, sufficient to absorb the whole of the fund in question, is a sufficient defence under the present, as well as under the former law, if proved; subject, however, to be impeached by the claimant, if he be able to do so.--Lehretter v. Koffman, 1 C. R. (N. S.) 284. In this case, the court of common pleas refused to grant an injunction to stay proceedings in the marine court on this ground, holding that the defence, if established, would be a valid one, and might be substantiated accordingly in the latter tribunal. It was also held that, in certain cases of this description it might be necessary to institute a suit in the tribunal of higher jurisdiction, in the nature