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· AN ACT
TO AMEND THE CODE OF PROCEDURE,
PASSED JULY 10, 1851.
The People of the State of New York, represented in Senate and
Assembly, do enact as follows :
SECTION 1. The following sections and subdivisions of sections of the Code of Procedure are hereby amended, so that the same shall respectively read as follows, namely : [Here follow Sections 11, 13, 14, 16, 24, 30, 31, 63 (subd. 3, 9), 56, 57, 60, 61, 62, 64 (subd. 11), 68, 74, 99, 100, 101, 111, 113, 114, 116, 122, 126, 130, 131, 132, 134, 135, 136, 138, 139, 142 (subd. 2), 149, 152, 153, 156, 157, 158, 162, 172, 173, 174, 179 (subd. 3), 188, 193, 231, 244, 246 (subd. 2, 3,), 252, 255, 258, 259, 263, 264, 265, 268, 269, 272, 273, 278, 281 (subd. 2), 282, 284, 287, 291, 292, 297, 298, 302, 306, 307 (subd. 6), 317, 339, 348, 349, 353, 354, 366, 371, 384, 385, 397, 399, 459,460, 470. These sections will be found in their appropriate places in the copy of the code which follows this act, and are therein distinguished by the word "amended” being prefixed to each.]
$ 2. Section 13 of the code as amended by this act, shall
take effect on the first day of January next; and the Secretary of State, in publishing the laws of the present session, shall publish the code of procedure entire, as amended by ibis act, as an appendix in the volume of the said session laws, printing the sections in this act in italics.
(NOTE.—The code as amended applies to future proceedings in actions or suits pending on the 31st of July, 1851, as follows:
1. If there have been uo pleading therein ; to the pleadings and all subsequent proceedings.
2. Whon there is an issue of law or of fact, or any other question of fact, to be tried; to the trial and all subsequent proceedings.
3. After a judgment or order to the proceedings to enforce, vacate, modify or reverse it, including the costs of an appeal. Code, s. 459.)
CODE OF PROCEDURE
AS AMENDED BY THE PRECEDING ACT,
WILL READ AS FOLLOWS.
(The figures within brackets, placed after the number of the section, is the number of the corresponding section in the code of 1848, but the number thus placed is: not intended to indicate that the language of the sections is identical.)
To amend the act entitled "An act to simplify and abridge the
practice, pleadings, and proceedings of the courts of this State," passed April 12, 1848.
Passed April 11, 1849.
The act entitled “ An act to simplify and abridge the practice, pleadings, and proceedings of the courts of this State,” passed April 12, 1848, is hereby amended so as to read as follows:
AN ACT To simplify and abridge the practice, pleadings, and pro
ceedings of the courts of this Stale.
WHEREAS, it is expedient, that the present forms of actions
and pleadings in cases at common law should be abol
ished, and that the distinction between legal and equitable remedies should no longer continue,* and that a uniform course of proceeding, in all cases, should be established : Therefore,
The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :
3. 4. 5. 6. 7. 8.
GENERAL DEFINITIONS AND DIVISIONS.
§ 1. [1.] Remedies.—Remedies in the couris of justice are divided into,
§ 2. [2.] Action.-An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence.
The second section in the code of 1848, instead of the words in italic, had these words "a regolar judicial proceeding," and per Barculo J.," the word regular cannot be fairly applied to statutory proceeding unknowu to the “common law"-Traver v. Traver, 3 Pr. R. 351, 353. But per Gridley, J. “ An action given by statute may be just as regular as an action of common law origin.” Myers v. Rasback, 2 Code Rep. 13—4 Pr. R. 83, 85. Myers v. Borland ib., and per Barculo J., “ I certainly had no doubt whether a suit for partition of lands was a regular judicial proceeding,' I did intend to say that, proceedings by petition for partition were not merged in the legal actions of the code.” Row v. Row, 4 Pr. R. 133.
*“ The words in all cases' in the last clause, evidently refer to the preceding context, and are limited to common law actions and suits in equity. This is also apparent, from the fact that, the code expressly excepts all special proceedings and numerous other statutory remedies, which partake of the nature of actions. The preamble, therefore, contemplates merely the abolition of the existing forms of proceed. ings in actions at common law, and in suits in equity, and the adoption of one now uniform course of proceeding for both, per Barculo J., in Traver v. Traver, 3 Pr. R. 351, 352—and by the court in Linden v. Fritz, 3 Code Rep. 164, 5 Pr. R. 188.” It (the code) has abolished the distinction between legal and equitable remedies, but it has not changed the inherent difference between legal and equitable reliefand see section 69 of this code and note thereto.
A creditor's suit is undoubtedly an action within this definition. Quick v. Keeler, 2 Sandf. S. C. R. 231-but in Dunham v. Nicholson, 2 Sandf. S. C. R.. 636, this dictum was qualified and it is there said, " Though it (a creditor's suit) assumes the form of an action, it is really a proceeding to carry out an existing judgment." Tho proceeding to obtain a discovery of books, &c., is not an action, per Sill, J., in Follett v. Weed, 3 Pr. R. 303, 304, 1 Code Rep. 65.
A proceeding for partition of land is clearly an action, per Harris, J., in Backus v. Stillwell, 3 Pr. R. 318, 1 Code Rep. 70, and per Gridley, J., in Myers v. Rasback, 2 Code Rep. 13, 4 Pr. R. 83. Myers v. Borland, ib. But, per Barculo, J. the proceedings in question have never been deemed, treated, or called a legal action. the Revisers in their notes say, they resemble more "a bill in equity than an action at law,” which clearly implies that they are neither. Traver v. Traver, 3 Pr. R. 351, 353.
5 3. [3.] Special proceeding:-Every other remedy is a special proceeding.
The proceeding supplementary to an execution is a special proceeding, per Wil. lard, J., in Davis v. Turner, 4 Pr. R. 190, 192-and the proceeding to assess damages on the laying out of plank roads under chapter 210 of the laws of 1847, is most undoubtedly what under the code is denominated a “special proceeding,” per Mason, J., in ree Fort Plain and Cooperstown plank road co. Ex parte Ransom, 3 Code Rep. 148.
$ 4. [4.] Division of actions.-Actions are of two kinds :
s 5. [5.] Criminal action.-A criminal action is prosecuted by the people of the State, as a party, against a person charged with a public offence, for the punishment thereof.
Of course, this section does not mean that a criminal action is prosecuted against a person for the punishment of the offence, but it certainly says so. Stoughton's Revier, p. 8.
$ 6. [6.] Civil action.-Every other is a civil action.
$ 7. [7.] Remedies not merged.—Where the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other.
Taken substantially from 2 R. S. 390–2.
$ 8. (8.) Division of act.—This act is divided into two parts :
The first relates to the courts of justice and their jurisdiction:
The second relates to civil actions commenced in the courts of this State, after the 1st day of July, 1848, except when otherwise provided therein, and is distributed into fifteen titles. The first four relate to actions in all the courts of the State, and the others, to actions in the supreme court, in the county