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CHAPTER III.

THE MUNICIPAL COURT OF THE CITY OF BROOKLYN, AND

THE JUSTICES' COURTS OF THE CITIES OF ALBANY, TROY AND HUDSON.

SECTION 60. Their jurisdiction.

$ 60. The municipal court of the city of Brooklyn, and the justices' courts of the cities of Albany, Troy and Hudson, respectively, shall have jurisdiction in the following cases, and no other :

1. In actions similar to those in which courts of justices of the peace have jurisdiction, as provided by sections 46 and 47.

2. In an action upon the charter or by-laws of the corporations of their cities respectively, where the penalty or forfeiture shall not exceed one hundred dollars.

CHAPTER IV.

GENERAL PROVISIONS.

SECTION 61, Sections 48–57 applied to these courte.

$ 61. The provisions of sections 48 to 57, both inclu-: sive, relating to forms of action, to pleadings, to the rules of evidence, to filing and docketing transcripts of judgments, to their effect and the mode of enforcing them, and to proceedings where title to real property shall come in question, shall apply to the courts embraced in this title; except, that after the discontinuance of the action

[P. & p.]

in the inferior court, upon an answer of title, the new action may be brought either in the supreme court, or in any other court, having jurisdiction thereof.

This section has been already sufficiently explained, in considering the provisions which it is proposed to apply to the courts embraced in this title, excepting the concluding provision. The exception there made, is intended to permit the plaintiff, where an action is discontinued in an inferior city court, to commence his new action in the mayor's or recorder's court of the same city, if such a court exist. It forms an exception, in this respect, to the provision relative to the courts of justices of the peace. In respect to them, as has been seen, the provision as to the new action, requires that it shall be commenced in the supreme court; there being, (if our recommendation limiting the jurisdiction of the county courts to special cases, be adopted,) no court, except those specially established in cities, which have jurisdiction of actions involving the question of title to real property

PART II.

OF CIVIL ACTIONS.

TITLE I. Of their Form.

II. Of the Time of Commencing them.
III. Of the Parties.
IV. Of the Place of Trial.

V. Of the Manner of commencing them.
VI. Of the Pleadings.
VII. Of the Provisional Remedies.
VIII. Of the Trial and Judgment.
IX. Of the Execution of the Judgment.

X. Of the Costs.
XI. Of Appeals.
XII. Of the Miscellaneous Proceedings, and gene-

ral provisions.

TITLE I.

of the Form of Civil Actions.

SECTION 62. Distinction between actions at law and suits in equity, and forms of such

actions and suits, abolished.
63. Parties to an action, how designated.
64. Actions on judgments, abolished.
65. Feigned issues, abolished.

The chief object of this title is to declare the leading principles which lie at the foundation of the whole proposed system of legal procedure, and without which, in our judgment, very few, if any essential reforms can be effected in remedial law. We refer to the abolition of the distinction between actions at law and suits in equity, and of the

forms of such actions and suits. This principle it is proposed to declare by section 62, which provides that “the distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and there shall be, in this state bereafter, but one form of action for the enforcement or protection of private rights, and the redress of private wrongs, which shall be denominated a civil action."

In our remarks upon this section we shall consider separate ly, the two propositions which it involves.

The first is, the abolition of the distinction between actions at law and suits in equity. The separate jurisdictions of law and equity, exercised by distinct tribunals, as they existed in this state up to the adoption of the new constitution, were borrowed from similar institutions in England, with such modifications, as the genius of our people rendered necessary. In the early history of the English law, there was but one system of jurisprudence, and one form of tribunal by which it was administered. We refer to the courts of common law. In the progress of time, the unbending rigor of common law rules was found to be a grievance, which rendered necessary the exercise of some judicial power, by which the severity of the common law might be relaxed. The establishment of the court of chancery, the original design of which was to soften the rigor of the common law, and to do complete and perfect justice, by means of the peculiar forms of proceeding with which it was invested, where injustice would otherwise have followed, was the result. In the exercise of its functions, new principles were adoptedy new modes of proceeding devised, and powers, some of them exclusive of and others concurrent with the courts of law, became the means, by which its jurisdiction was administered.

With these attributes; that court was incorporated into the judicial establishment of this state ; and until it was aboltshed by the new constitution, it continued to exist, and to exercise substantially the same powers as exercised by the court of chancery in England. Its forms and modes of proceeding, not merely in enforcing the substantial rights of parties, but in the ordinary proceedings by which suits were conducted, were essentially different from those of the common law courts; and not merely in the formal conduct of litigation, but in the substantial rules by which rights were to be determined, it had built up as distinct a system as it is possible to conceive. The result was, in this state, as it has ever been in England, since the separate establishment of this court, a conflict of jurisdiction, and a difference of judicial opinion, as to the precise boundary which separated the powers of law and equity ; leading to a call on the part of the people, for such a course of measures, as would ensure the attainment of substantial justice, and remove the embarrassments in the organization of the judiciary establishment, by which there was good reason to fear, it had too often been defeated.

In the course of the discussions in the convention, on this subject, upon the proposition to blend the two jurisdictions in one court, the confusion and injustice resulting from the former system of separate tribunals, was maturely considered, and resulted in the adoption, by an almost unanimous vote, of the provision of the constitution abolishing the court of chancery, and declaring that “there shall be a supreme court, having general jurisdiction in law and equity." (Art. 6, sec. 3.) A reference to the debates of that body, will show that this result was effected, by the conviction which was entertained, of the injustice of subjecting a party whose rights were involved, to the uncertain chances in the selection of the proper forum, by which they were to be determined. And it is not a little singular, that this important change in the judicial establishment of the State, owes its origin mainly to the fact, that this injustice was the result, rather of the modes of proceeding, than of the rules of determination adopted by the several legal and equitable tribunals. An eminent legal member of that body, whose opinions, probably, had great influence in confirming, if not in producing this result, presented this distinction in terms so clear and forcible, that we cannot forbear introducing them in this place.

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