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Thus the name of the court in which the case was decided, is mentioned. To the New York practitioner the court is often indicated by the reporter's name ; but it has seemed not improper to consult the convenience of those unfamiliar with our reports, so far as to name the courts, notwithstanding. Special-term cases and decisions at chambers are designated as such ; and where conflicting decisions on the same question have been rendered by the present Supreme Court, in different districts, the district is specified. So, also, the year in which each case was decided, is given. And whenever it has seemed desirable, the authorities cited by the court, either as controlling its decision, or as establishing premises from which the decision was a conclusion, have been stated.

In respect to the reports, we have aimed to state at length only points actually decided in the various cases. So far as dicta and questions raised but andetermined have been thought important, they have been briefly indicated, but in a way to show that they were not to be deemed decided. But in general we have sought to eliminate the point actually determined ; following, however, a large and liberal rule in this respect. In a rigid view, doubtless, an adjudication can be considered an authoritative precedent upon those points only which were essential to the decision of the cause. For the purpose of a digest, however, a greater latitude is proper. Our rule has beenQuote the case upon all the points which were so involved that it was the duty of counsel to argue them, and which were actually deliberated upon and decided by the court. Thus the familiar instance of a cause argued on an appeal, based on several exceptions taken at the trial, if the court actually give an opinion on all the exceptions, we treat each point as a point decided in the cause. It is very true that the court might, and in a technical view, perhaps, they should have selected that exception which involved the least subject-matter of decision, and if they sustained that, have waived all discussion of others as unnecessary to a determination. But as counsel cannot foresee on which exception the decision will be based, they must argue all. And when points of law thus argued under a professional duty, have actually been decided under an official responsibility, it is difficult to see why, in a philosophical point of view at least, if not by technical rule, the opinion given is not as persuasive as if the decision of the cause had hung upon but one point. The rule in this respect which obtained in former times, when the authority of a precedent, if once established, was much more controlling than at present, is now practically much relaxed. And it seems clearly proper that a digest should present all points argued and decided, without excluding those which may seem to have been unnecessarily determined.

As an auxiliary to the reported cases, the general statutes of the State are embraced in this work. They are abridged, or, in some instances, concisely indexed, and introduced in their proper places in the various titles; being distinguished from the cases by the use of a smaller type.

The Revised Statutes referred to in this Digest, are the original edition of 1829. That edition is authoritative : the subsequent editions, so far as they are amended to meet the changes of the law, rest upon the private authority of their editors. Therefore, in giving the statutes passed since 1829, we have preferred to cite the session-laws themselves. We have also had occasion in several instances to cite statutory provisions from the Revised Laws of 1813 ; either because they were not superseded by the Revised Statates, or because, although they were so superseded, they were necessary to be given in explanation of decisions which refer to them. The instances in which it has been requisite to cite the earlier compilations, or the session-laws anterior to the revision of 1829, have been very few.

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In the classification of the work, we have aimed in the first place and chiefly to put each point under the topic where a practical lawyer, who needed it, would be most likely to search for it. And all philosophical considerations and principles of classification have been, in our purpose at least, kept rigidly subordinated to the convenience and utility of the work as a manual for practical reference. Subjects have been subdivided as much as practicable ; and the law has been distributed in articles of small scope, as far as there were well-recognized titles for them, instead of being grouped under the larger topics.

At the basis of our classification lie the various rights or wrongs which it is the business of jurisprudence to protect and redress. The cases which define these rights and wrongs are arranged under their best recognized names. Some of these titles take their name from a personal relation out of which the right springs, or which the wrong infringes. This is the case with such titles as Parent and Child ; Husband and Wife; Landlord and Tenant. Some take their name from the subject-matter of the right; as the title Chattels. Some are named from transactions or dealings out of which the right springs, as in the title Contracts, and various titles treating of particular classes of contracts : Bond, Deed, Lease, &c. Some are entitled with the names of particular wrongs or crimes, as Assault and Battery; Larceny ; Libel; Trespass. Under all these classes of titles and many others we have endeavored to give all that establishes, defines, or limits the right or the wrong ; all that will enable the reader to judge what is and what is not the cause of action arising under that title. But these various rights and the correlative wrongs, are not carried out ander their respective heads to the extent of showing the mode of proof and of redress appropriate. On the contrary, rules which relate to the mode of proving the existence of a right or the commission of a wrong, are collected under the general head of evidence and auxiliary titles. Rules of procedure in actions, relative to all the causes of action, are collected under the subject of Practice, and under titles correlative to that; and the various special proceedings are treated under their several names. Other subjects, not directly connected in the ordinary view with rights and wrongs, or their remedies, and in general not much connected with each other, are interspersed through the work, in their appropriate places in the alphabetical arrangement.

These principles of classification have been followed in conformity to that steady course and progress of jurisprudence peculiarly exemplified in this State, which was initiated here by the Revised Statutes, was greatly stimulated by the Constitution of 1846, was largely realized as to one department of law in the Code of Procedure, and is, perhaps, destined to be still more strikingly exhibited in the future ; a course and progress by which rules of proof and modes of remedy are less and less conformed to the individual right or wrong apon which they wait, and are become more and more homogeneous and uniform.

For the convenience chiefly of practitioners in other States of the Union who may have occasion to consult this work, we subjoin some account of those Courts of this State decisions of which have been systematically reported ; also a table describing the va rious Reports embraced in the Digest.



January, 1860.




The following list of courts embraces those only of whose decisions there exist some systomatic reports. There are, and have been, many other courts; and there are some, as the City Court of Brooklyn, the Superior Court of Buffalo, the Courts of Sessions, the County Courts, &c.—a few decisions of which have incidentally found their way into the reports, and are given in this Digest; but as these are of subordinate importance and aathority, no systomatio mention of them seems necessary.


The first Constitution of the State, adopted in 1777, provided for the creation of a “Court for the Trial of Impeachments and Correction of Errors." This provision was subsequently, in 1784, carried into full effect by an appropriate act of the Legislature. The court, as thus organized, continued in existence substantially without change in its jurisdiction, powers, and duties, until, in 1846, it was abolished by the Constitution then adopted.

The Court of Errors consisted of the President of the Senate for the time being, and the Senators, Chancellor, and Judges of the Supreme Court, or a majority of them. By virtue of its jurisdiction as a Court for the Correction of Errors, it had power to review, on a writ of error, the judgments of the Supreme Court, and, on appeal, decrees and decretal orders of the Court of Chancery. Writs of error were issued by the Chancellor. In civil causes, and in criminal cases not capital, a writ of error was matter of right, and was issued as of course. In capital cases the writ was of grace, and issued only on an order made upon motion or petition, with notice to the State prosecuting officer.

During the whole period of its existence, the Court of Errors was the court of last resort; and its decisions were final and controlling, subject only to appeal to the United States Supreme Court, in the cases allowed by the Federal Constitution. Nor has the abolition of the court diminished the weight and authority of its reported decisions. Except such of them as may have been overruled by the Court of Appeals, they still control in the jurisprudence of the State. The Court of Errors appears always to have enjoyed the respect and confidence of the other courts and of the legal profession, as well as of the people of the State at large. As respeots its jurisdiction in the correction of errors, the Court of Errors was succeeded by the present Court of Appeals.

There are no distinct reports of the Court of Errors as such. Its decisions are interspersed with those of the Supreme Court in the reports by Caines, Johnson, Cowen, Wendell, Hill, and Denio.


This court was first established under the Constitution of 1846. It has appellate jurisdiotion only, and is the court of last resort.

The court consists of eight jadges. Four of these are elected by the people of the State at large. One such judge is elected every two years, and they hold office for eight years. The other four judges are selected from the class of justices of the Supreme Court having the shortest time to serve. An appeal lies to this court from judgments and certain classes of orders made at a general term of either of the superior courts of original jurisdiction; these are the Supreme Court, the New York Saperior Court, New York Common Pleas, and the Superior Court of Buffalo.

The decisions of this court are reported in regular order, in the series now known as the New York Reports, conducted by a State reporter.


The history of the Supreme Court of the State of New York may be traced back to a very early period in colonial times. In the first Constitution of the State, this court was recognized as existing, and the mode of appointment and tenure of office of its judges were prescribed. Some slight changes were made in the organization of the court, by statutes passed within a few years after the adoption of that Constitution. The result was, that during the earlier periods of our history as a State, and at the time when our reports commence, the Supreme Court was the leading court of original jurisdiction. Its powers were never precisely defined by law, but it has always exercised a general jurisdiction, corresponding to that of the King's Bench in England. It was then composed of a chief-justice and four puisne justices, who held office during good behavior, or until they attained the age of sixty years.

These justices might not hold any other office; but if eleoted to another, might choose between the two. Suits for money-demands under twenty pounds in amount, were required by law to be brought in the inferior courts; and were not to be removed into the Supreme Court except by writ of error. The justices of the Supreme Court were required, at least once a year, in vacations, to hold Circuit Courts in each of the counties of the State, for the trial of issues joined in the Supreme Court, or brought into that court to be tried. Issues were in general required to be tried in the counties wherein the lands concerned were situated, or the cause of action arose, or the offence was committed. Each justice was required to return his proceedings at such circuits to the Supreme Court at its next term, which was to record them, and render the proper judgment. In association with certain local magistrates of the respective counties, the justices held also Courts of Oyer and Terminer, at the same time with the circuits. The proceedings had before the individual justices at the circuits, were, under this form of organization, reviewable before the full bench of justices; and their decisions were in turn the subject of review, on writ of error, in the Court of Errors.

The Supreme Court, as thus constituted, continued in operation until the new Constitution adopted in 1822 took effect. That instrument, and the legislation enacted for the purpose of carrying its provisions into effect, made important changes in its organization, especially in respect to the trial and determination of issues of fact. The number of justices of which the Supreme Court proper was composed was reduced to threema chief-justice and two justices. The State was divided into eight judicial circuits. In each circuit there was a “circuit judge,” who held office by the same appointment and tenure with the Supreme Court justices. He was empowered to try civil causes at nisi prius, to hold the court of Oyer and Terminer, and also to exercise the functions of a justice of the Supreme Court at chambers. Power was also vested in these circuit judges to try causes in equity, as vice-chancellors. The proceedings of the circuit judges, acting as a justice of the Supreme Court at chambers, or in the trial of issues at law, or of criminal causes, were reviewable by the justices of the Supreme Court, in banc. From the decisions of the circuit judges in equity, an appeal lay to the chancellor.

Except that in some of the circuits a change was made in respect to the trial of equity causes, as will be more fully explained when we come to speak of the Court of Chancery, the organization of the Supreme Court continued substantially as above stated until the Constitution of 1846 took effect. By the provisions of that instrument, and of the legislation auxiliary to it, particularly the Judiciary Act of 1847, and the Code of Procedure of

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