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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 :
GENERAL DEFINITIONS AND DIVISIONS.
SECTION 1. Division of remedies.
2. Definition of an action.
§ 1. (1.] Remedies.--Remedies in the courts 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 regular judicial proceeding,” and per Barculo J., "the word regular cannot be fairly applied to statutory proceeding unknown 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 naiure of actions. The preamble, therefore, contemplates merely the abolition of the existing forms of proceedings in actions at common law, and in suits in equity, and the adoption of one new 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. Č. R.. 636, this dictom 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." The 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 F. 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.
$ 3. [3.] Special proceeding.–Every other remedy is a special proceeding.
The proceeding supplementary to an execution is a special proceeding, per Willard, 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 : 1. Civil; 2. Criminal.
$ 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 Review, 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 courts, in the superior court of the city of New York, in the court of common pleas for the city and county of New York, in the mayors' courts of cities, and in the recorders' courts of cities, and to appeals to the court of appeals, to the supreme court, to the county courts, and to the superior court of the city of New York.
This section limits the provisions of the code to proceedings in suits commenced,
after the code took effect. Merritt v. Wing, 4 Pr. R. 14. Clark v. Crandall, 4 Truscott Pr. R. 127, 2 Code Rep. 70. Tusscott v. King, 4 Pc. R. 173. Thompson v. Blan
chard, 4 Pr. R. 260. Doty v. Brown, 4 Pr. R. 429. The superior court however, proceeding on the principle, that an appeal is in some respects a new action, havo held, contrary to the decisions in the supreme court, that in a suit commenced before the code took effect, in which an appeal is brought after the code took effect, this section extends the provisions of the code to the proceedings and costs on such appeal. Kanouse v. Murtin, 2 Sandf. S. C. R. 739, 741, 3 Code Rep. 203. In Overseers of Clay ton v. Beedle, 1 Barb. S. C. R. 11, Allen, J., following the dicta of Jewett and Cowen, JJ., in McDonald v. New York City Savings' Bank, 2 How, Pr. R. 35, and Moore v. Cooley, 2 Hill, 412, held, that a writ of error was not a suit or action.
OF THE COURTS OF JUSTICE AND THEIR JURISDICTION.
TITLE I. OF THE COURTS IN GENERAL.
II. OF THE COURT OF APPEALS.
OF NEW YORK, AND THE Mayors' AND RECORDERS' COURTS IN
Of the Courts in general.
10. Their jurisdiction.
§ 9. [9.] The several courts.—The following are the courts of justice of this State:
1. The court for trial of impeachments. 2. The court of appeals. 3. The supreme court. 4. The circuit courts. 5. The courts of oyer and terminer. 6. The county courts. 7. The courts of sessions. 8. The courts of special sessions. 9. The surrogates' courts. 10. The courts of justices of the peace. 11. The superior court of the city of New-York. 12. The court of common pleas for the city and county of
New-York. 13. The mayors' courts of cities. 14. The recorders' courts of cities.
15. The marine court of the city of New-York.
§ 10. [10.] Their jurisdiction generally.—These courts shall continue to exercise the jurisdiction now vested in them respectively, except as otherwise prescribed by this act.
The Court of Appeals.*
12. Power of court.
§ 11. (11.] (Amended.)- Jurisdiction.—The court of appeals shall have exclusive jurisdiction to review, upon appeal, every actual determination hereafter made at a general term hy the supreme court, or by the superior court of the city of New-York, or court of common pleas of the city and county of New-York, in the following cases, and no other :
1. In a judgment in an action commenced therein, or brought there from another court; and upon the appeal from such judgment, to review any intermediate order involving the merits and necessarily affecting the judgment :
2. In an order affecting a substantial right, made in such action, when such order in effect determines the action and prevents a judgment, from which an appeal might be taken.
3. In a final order affecting a substantial right, made in a special proceeding, or upon a summary application in an action, after judgment:
4. In an order granting a new trial, but such an appeal shall not be allowed in an action originallly commenced in a court of a justice of the peace, or in the marine court of the city of New-York, or in an assistant justice's court of
* See Rules in Appendix and laws of 1847, pp. 263, 306, 312, 313, 320, 322, 425, 426, 555, 638.