PART III. 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. Rules and practice Inconsistent with 19 N. Y., 492; 22 B., 367; 15 B., 604; 19 How. P. R., 565; 15 How. P. R., 226; 13 How. P. R., 131; 8 How. P. R., 526; 5 How. P. R., 126; 12 Ab., 182, 389; 11 Ab., 227; 1 Ab., 455. $469. 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 abrogated. to the power of the respective courts to relax, modify, or alter the same. this act Judges of what court to make when. 10 N. Y., 503; 8 B., 657; 14 How. P. R., 95; 12 How. P. R., 156; 10 How. P. R., 85; 13 Ab., 423; 12 Ab., 182; 9 Ab., 103; 7 Ab., 72, 94, 362; Ab., 69; 4 Ab., 59, 250; 1 Ab., 2, 263, 357, 455. $470. The judges of the supreme court, of the superior court of the city of New York, and of the court of common rules, and pleas for the city and county of New York, shall meet in general session at the capitol in the city of Albany, on the first Wednesday in August, one thousand eight hundred and fifty-two, 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. This act not affect certain ceedings and statutory provisions. As amended by Laws of 1851, ch. 479; 1852, ch. 392. 19 B., 591; 8 B., 354, 657; 17 How. P. R., 383; 6 How. P. R., 50; 10 Ab., 360. S 471. Until the legislature shall otherwise provide, the to pro- second part of this act shall not affect procedings 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 318 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. Amended by Laws of 1852, ch. 392; 1862, ch. 460; 1863, ch. 392. 367; 16 B., 592; 11 B., 619; 23 How. P. R., 198; 20 How. P. R., CHAP. XI. parts of other sta $ 472. Nothing in this act contained shall be taken to re- Certain peal section 23 of article 2 of title 5 of chapter 6, part 3d, of revised and the Revised Statutes, or to repeal an act to extend the ex- tutes not emption of household furniture and working tools from dis- repealed. tress for rent and sale under execution, passed April 11, 1842. 24 B., 444. when to $ 473. This act shall take effect on the first day of July, This act, 1848; except that sections 22, 23, 24 and 25 shall take effect take effect. immediately. CHAP. 439. AN ACT to amend an act entitled "An act to facilitate the determination of existing suits in the courts of this State." PASSED April 11, 1849. The People of the State of New York, represented in Senate and Assembly, do enact as follows: The act entitled "An act to facilitate the determination of existing suits in the courts of this State," passed April 12, 1848, is hereby amended so as to read as follows: §1. The act to simplify and abridge the practice, pleadings and proceedings of the courts of this State, passed April 12, 1848, and amended at the present session of the legislature, is herein designated as the "Code of Procedure." TITLE I. PROVISIONS RELATING TO THE COURTS IN GENERAL. CHAPTER L. Sections of the Code of Procedure referred to and applied to existing suits. II. Other provisions relating to existing suits. CHAPTER I. SECTIONS OF THE CODE OF PROCEDURE REFERRED TO AND APPLIED TO § 2. The provisions of the Code of Procedure, contained in the following sections thereof, are hereby applied, so far as the same are applicable, to future proceedings in civil suits, whether at law or in equity, pending on the first day of July, 1848, as follows: 1. Sections seventy-two, one hundred and twenty-one, one hundred and sixty-nine to one hundred and seventy-six, both inclusive, three hundred and fifteen and three hundred and PART III. eighty-eight, to proceedings in actions in the supreme court, in the county courts, in the superior court of the city of New York, in the court of common pleas for the city of New York, in the mayors' courts of the cities of Albany, Hudson, Troy and Rochester, and in the recorders' courts in the cities of Buffalo and Utica; 2. Sections two hundred and ninety-two to three hundred and two, both inclusive, to executions on a judgment or decree in any of those courts, hereafter issued, against any person to the sheriff of the county where he resides, or if he reside out of the state, to the sheriff of the county where the record of judgment is filed or the decree enrolled; the word "judgment" in these sections being taken to include a decree; 3. Sections three hundred and twenty-three to three hundred and thirty-one, both inclusive, three hundred and thirtythree to three hundred and forty-seven, both inclusive, and three hundred and fifty-one to three hundred and seventy-one, both inclusive, to the review of judgments, decrees, and final orders, from which no writ of error or appeal shall have been already taken, the word "judgment" being taken to include a decree, and "judgment roll" to include the record of judgment and enrollment of decree; 4. Sections three hundred and ninety to three hundred and ninety-nine, both inclusive, four hundred and six to four hundred and fifteen, both inclusive, four hundred and seventeen and four hundred and eighteen, to proceedings in actions in all the courts of civil jurisdiction in the state; 5. Section four hundred and two, to non-enumerated motions in the courts mentioned in the first subdivision of this section. Suits re ferred by consent. Reference to take CHAPTER II. OTHER PROVISIONS RELATING TO EXISTING SUITS. S3. Any suit in equity now pending in the supreme court, or which may be there pending before the first day of July next, or any issue therein, whether of fact or of law, or both, testimony. may be referred upon the written consent of the parties concerned; and upon the like consent, a reference may be ordered to take testimony, or to report facts, or to execute any order or decree. Reference when $ 4. Where the parties do not consent, as in the last section directed by mentioned, the court may, upon the application of either, or of its own motion, direct a reference in such suit, in the following cases: court, 1. Where the determination of an issue of fact shall require the examination of a long account on either side; in which case the reference may be to hear and decide the whole issue, or to report upon any specific question of fact involved therein; or 2. Where the taking of an account shall be necessary for the information of the court, before decree, or for carrying an order or decree into effect; or CHAP. XI. Report of referee to 3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the suit. $5. The report of the referee or referees upon the whole cause, or upon the whole of any issue therein, shall stand as stand as the decision of the court, in the same manner as if the cause or issue had been determined by the court at a special term, and may be reviewed in like manner. decision. how ap $6. The referee or referees shall be appointed in the manner Referees, provided in section two hundred and seventy-three, of the pointed. Code of Procedure, and shall have the powers specified in section four hundred and twenty-one, and the compensation specified in section three hundred and thirteen of that Code. re-hearing. tice neces $7. No re-hearing shall take place at a general term of Re-hearing. the supreme court, of an order or decree made at a special term, unless the same involve the merits of the suit or proceedings or some part thereof. And further proceedings Security to be given. upon the order or decree shall not be stayed, unless security be given in the same manner, and to the same extent, as would be required if an appeal were taken to the court of appeals from the same order or decree, made, or confirmed at a general term. Nor shall such re-hearing be had, unless Notice of notice of the same be given, within ten days after notice of the order or decree re-heard, with the security thus required. 8. No petition for a re-hearing need be made. Instead What nothereof, it shall only be necessary to serve a notice in writing sary. on the adverse party, and on the clerk with whom the order or decree to be re-heard is entered, stating the application for a rehearing of such order or decree, or some specified part thereof. 59. Any party aggrieved by an order made at a special Appeal term of the supreme court, in an action at law, or in a spe- order. cial proceeding, when it involves the merits of the action or special proceeding, or some part thereof, may appeal therefrom to the court at a general term; where, upon such appeal, the order may be reversed, affirmed or modified, according to law. $10. The appeal in the last section mentioned, may be Appeal, made, by the service of a notice in writing, on the adverse party, and on the clerk with whom the order is entered, stating the appeal from the same, or some specified part thereof. But no such appeal shall be taken, unless a judge of the supreme court certify, that, in his opinion, it is proper, that the question arising on the appeal should be decided at the general term. TITLE II. PROVISIONS RELATING TO COURTS IN THE FIRST JUDICIAL DISTRICT. from an how made. term of $11. The general term of the supreme court, appointed to General be held in the first judicial district, on the first Monday of supreme April, eighteen hundred and forty-eight, shall be continued court hod. continued. PART III. Special circuit continued. from the first Monday of each month to the third Saturday thereafter, until and including the third Saturday after the first Monday of July, eighteen hundred and forty-eight, or until all the cases on the calendar be sooner heard, or a sufficient opportunity be given for the hearing thereof. $12. The special terms and circuit courts appointed to be held in the first judicial district at any time hereafter, before courts, how the first day of July, eighteen hundred and forty-eight, shall be respectively continued from the first Monday of each month to the third Saturday thereafter, until and including the third Saturday after the first Monday of July, eighteen hundred and forty-eight, or until all the cases ready thereat for hearing or trial be sooner heard, or otherwise disposed of. General and special terms in first district. S 13. In addition to the courts already required by law, there shall be held on the first Monday of September, eighteen hundred and forty-eight, a general and special term of the supreme court, and a circuit court in the first judicial district by such judges, as the governor shall, by appointment, in writing, 'designate; which terms and circuit court shall be exclusively devoted to the determination of suits and proceedings in the supreme court commenced before the first day of July, eighteen hundred and forty-eight. $ 14. The terms and circuit court, mentioned in the last continued. section, shall each be continued in each month, except October and January, from the first Monday to the third Saturday thereafter, inclusive, until the fourth Saturday in February, eighteen hundred and forty-nine, or until the suits and proceedings mentioned in the last section, ready for hearing at such courts, shall be sooner determined. Terms, how long In case of governor S 15. If the judges assigned to hold such general or special disability, terms or circuit courts, or any of them be unable, by reason may assign of sickness, or judicial engagements elsewhere, to sit until the close thereof, the governor shall assign other judges, not actually engaged in holding court, to take their places respectively. judges. When cause passed, on the calendar. S 16. When a cause, placed upon the calendar of a court how placed of record in the city of New York, shall be regularly called and passed, without a postponement by the court for good cause shown, it shall thenceforth take its place on the same or any future calendar, as if the date of the issue were the time when it was thus passed. Party to of issue. $17. In the case mentioned in the last section it shall be state date the duty of the party placing a cause upon the calendar, for a subsequent term, to state the date of the issue, as above prescribed; and if he omit to do so, by reason whereof the issue retains its priority on the calendar, the court on the application of the adverse party, or of its own motion, may strike the cause from the calendar. Act takes effect im $ 18. This act shall take effect immediately, except that mediately. section two shall take effect at the same time with the Code of Procedure. |