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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 Inconsistent statutory provisions repealed.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 Certain statutes repealed.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 Statutory provisions, inconsistent with this act, repealed.

All statutory provisions, inconsistent with this act, are repealed; but this repeal shall not revive a statute or law which may have been repealed or abolished by the provisions hereby repealed.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.) 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.

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

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 capital 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 for the city and county of New York, and the county courts, so far as the same may be applicable.

See Laws 1870, ch. 408, § 13.

$ 471. (Am'd 1849, 1852, 1862, 1863.) This act not to affect certain proceedings and statutory provisons. Mandamus.

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, except that the costs on such appeal shall be regulated and allowed in the manner provided in section three hundred and eighteen of this act; 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 shall 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.

In actions or proceedings by mandamus, amendments of any mistakes in the process, pleadings or proceedings therein may be allowed, and shall be made in conformity to the provisions of chapter six, title six [§§ 169, 177], of the second part of the code of procedure.

See Laws 1859, ch. 174.

a. This section has not affected the measure of a sheriff's liability for the escape of a person committed on a ca, sa, as declared by 2 R S. 437, § 66, [63] (Renwick v. Orser, 4 Bosw. 384; McCreery v. Willett, id. 643; Daguerre v. Orser, 15 Abb. 113).

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


V. Pt. 2, of the Revised Statutes (2 R. S. 1).

TIT. 1., ART. 1.

Of attachment against absconding, concealed, and nonresident debtors.

TIT. 6.






Of proceedings by creditors to compel assignments by
debtors imprisoned on execution in civil causes.
Of voluntary assignments by an insolvent for the purpose
of exonerating his person from imprisonment.


Of voluntary assignments by a debtor imprisoned on execution in civil causes (Laws 1857, ch. 427).


General provisions applicable to proceedings under the several preceding articles.


Of the powers, duties, and obligations of trustees as assignees under this title.


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 How. 348).

Of attachments against debtors confined for crime.

Of voluntary assignment made pursuant to the application of an insolvent and his creditors.

Provisions respecting assignees under former insolvent laws.

TIT. 2. Of the custody and disposition of the estates of idiots, lunatics,

persons of unsound mind, and drunkards.

Ch. V. Pt. 3, of the Revised Statutes.

Of trespass on land.

Proceedings to discover the death of persons upon whose lives any particular estate may depend.

Ch. VIII. Pt. 3, of the Revised Statutes.

Of the bringing and maintaining suits by poor persons (14 How. 16; 18 How 464).

TIT. 1.


Of suits by and against executors and administrators, and against heirs, devisees, and legatees (10 How. 217, 532; Laws 1859, ch 110, 261; 10 Barb 247).

4. Of proceedings by and against corporations and public bodies having certain corporate powers, and by and against officers representing them [and joint stock companies] (11 How. 186-29; 10 id. 1-487).


Of suits against sheriffs, surrogates, and other officers, on their official bonds.


Of actions for penalties and forfeitures, and provisions for the collection and remission of forfeited recognizances and fines imposed by courts (see 5 Abb. 384; 8 How. 431).

7. Of proceedings for the admeasurement of dower.


Of proceedings for the collection of demands against ships and vessels [and mechanic's liens] (Laws 1859, ch. 79; Laws 1862, p. 956).

Of proceedings for the recovery of rent and of demised premises. 10. Of summary proceedings to recover the possession of land in cer


tain cases (5 N. Y. 383; Laws of 1857, ch. 684).

TIT. 11.

Of distraining cattle and other chattels doing damage, and of distraining in other cases.


Of proceedings as for contempts, to enforce civil remedies, and to protect the rights of parties in civil actions (1 Duer, 512; 2 Sand. 724).

14. Of arbitrations.

15. Of the foreclosure of mortgages by advertisement (Laws of 1857, ch. 308).

16. Of proceedings for draining of swamps, marshes, and other low




General miscellaneous provisions concerning suits and proceed-
ings in civil cases.

Proceedings to change the names of parties (Laws 1860, ch. 80).
Ch. IX. of Pt. 3, 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" (2 R. S. Part III., Tit. 4, Art. 1), remain in force, "though probably the pleadings and practice, except where otherwise specially provided, should be under the code" (Bank of Commerce v. Rutland R. R. Co. 10 How. 5).

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

c. 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 §§ 24 and 25 of 2 R. S. 617, are retained by this section (Murray v. Haskins, 4 How. 263; and see note to § 303); and 2 R. S. 252, §§ 74, 75, are retained by the code (McGowan v. Morrow, 3 Code Rep. 9).

See also §§ 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 third, 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. (Am'd 1849.) This act, when to take effect.

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

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