§ 463. The words "personal property," as used in this act, include money, goods, chattels, things in action, and evidences of debt. Wait's Code, 801. See the cases cited in the last note. § 464. The word "property," as used in this act, includes property real and personal. See note to § 462. The word "property" includes both real and personal, but under § 179, subd. 1 of Code Pro., it is limited to personal property. Griswold v. Sweet, 49 How. 171; 1 Wait's Pr. 615. See the cases cited under § 462. § 465. The word "district," as used in this act, signifies judicial district, except when otherwise specified. See Christy v. Kiersted, 47 How. 467. § 466. 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. See last note, and Wait's Code, 802. 7 § 467. The rule of common law, that statutes in derogation of that law are to be strictly construed, has no application to this act. § 468. All statutory provisions inconsistent with this act, are repealed; but this repeal shall not revive a statute or law which may have been repealed or abolished by the provisions hereby repealed.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 assured 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. Wait's Code, 802. See Sherman v. Conner, 50 How. 29, 31; 16 Abb. N. S. 396. As to divorce cases. Blott v. Rider, 47 How. 90, 93. As to costs in common school cases. Clark v. Tunnicliff, 38 N. Y. (11 Sick.) 58, 62; 5 Trans. App. 268; 4 Abb. N. S. 451. The Code, § 468, is not construed to repeal any statute but those inconsistent with itself. Sutphen v. Lash, 10 Hun, 120, 123; § 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 to the power of the respective courts to relax, modify, or alter the same. Wait's Code, 802, 803; 1 Wait's Pr. 411, 445-466. This section of the Code continues in force all the pre-existing rules and practice of the courts in civil cases consistent with the Code itself. Holyoke v. Adams, 59 N. Y. (14 Sick.) 233, 236; 1 Hun, 223; 2 N. Y. Sup. Ct. (T. & C.) 1. And where the Code does not prescribe a rule, the old practice is followed. Cozine v. Walter, 55 N. Y. (10 Sick.) 304, 308; Vermilyea v. Palmer, 52 N. Y. (7 Sick.) 471, 473; Livermore v. Bainbridge, 49 N. Y. (4 Sick.) 125, 129. The Code only repealed such portions of the existing laws as were inconsistent with its own provisions. Burnham v. Onderdonk, 41 N. Y. (2 Hand) 425, 433; Fisher v. Hepburn, 48 N. Y. (3 Sick.) 41, 54; Lane v. Salter, 51 N. Y. (6 Sick.) 1, 7; Bailey v. Briggs, 56 N. Y. (11 Sick.) 407, 413; Haynes v. Onderdonk, 2 Hun, 619; N. Y. Sup. Ct. (T. & C.) 176; Sutphen v. Lash, 10 Hun, 120, 123; Robinson v. Brisbane, 7 id. 180, 182; Stark v. Hemstead, 6 id. 301; Powers v. Note to 470, Code Pro., for the purpose Wait's Code, 803; 1 Wait's Pr. 461, 286, 320, 235; 4 id. 627, 628. See ante, 60, 8 193; ante, 8, § 17, and note. This section does not authorize the making of a rule which will deprive a party of the right to be heard before granting an order striking out his pleading, and precluding him from prosecuting or defending the action. Rice Trevor, 3 id. 3, 6; 5 N. Y. Sup. Ct. (T. & C.) 231; Security Bank of New-York v. National Bank, etc., 2 Hun, 287, 291; 4 N. Y Sup. Ct. (T. & C.) 518; 48 How. 135; Mundorff v. Mundorff, 1 Hun, 41, 42; 3 N. Y. Sup. Ct. (T. & C.) 171; Brinkley v. Brinkley, 2 id. 501, 503; Mayor, etc., of New-York v. Marrenor, 49 How. 36, 44; Winston v. English, 44 id. 398, 404; affirmed, 14 Abb. N. S. 119; 3 J. & Sp. 512; Raphe lasky v. Lynch, 43 How. 157, 170; 2 J. & Sp. 31; 12 Abb. N. S. 224; Bishop v. Empire Transp. Co., 5 J. & Sp. 12, 15; Linner v. Crouse, 61 Barb. 289, 290; Sullivan v. Sullivan, 9 J. & Sp. 519, 524. And in all of the cases just cited, the rule is adopted that the old practice is in force, and is to be followed where no new rule is provided by the Code. And, in many instances, the Code merely furnishes a cumulative or additional rule, which leaves a party free to pursue either method. of preserving the references: v. Ehele, 55 N. Y. (10 Sick.) 518, 524. Nor to make a rule in violation of a statute. Glenney v. Stedwell, 64 N. Y. (19 Sick.) 120, 128; 51 How. 329; 1 Abb. N. C. 327. Rules may be made which change the practice as previously settled by the decisions of the courts. Havemeyer v. Ingersoll, 12 Abb. N. S. 301, 306. § 471. 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 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 5 of the second part of the Revised Statutes, or by the sixth and eighth titles of chapter 5 of the third part of those statutes, or by chapter 8 of the same part, excluding the second and twelfth titles thereof, or by the first title of chapter 9 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 6, title 6, of the second part of the Code of Procedure. Wait's Code, 803-807. This section does not affect appeals from surrogates' courts. Howland v. Taylor, 53 N. Y. (8 Sick.) 627; Spotts v. Dumesnil, 12 Abb. N. S. 117; 47 N. Y. (2 Sick.) 677. Nor the review of awards. Turnbull v. Martin, 45 N. Y. (6 Hand) 500; Freeman v. Kendall, 41 N. Y. (2 Hand) 518. Though see Laws 1873, chap. 70, as to the present rule. The remedy against an insolvent corporation may be pursued by an action under the Code. Van Pelt v. U. S. Metallic Spring Co., 13 Abb. N. S. 325; 3 J. & Sp. 111. As to pleadings in actions for penalties. Abbott v. N. Y. Cent. R. R. Co., 12 Abb. N. S. 465, 467. Proceedings in contempt. People ex rel. Day v. Bergen, 9 Hun, 202. This section does not authorize a motion for a mandamus to be made in any other place than that for other motions. Mason v. Willers, 7 id. 23. What a civil action is. Clinch v. South Side R. R. Co., 1 id. 636, 639; 4 N. Y. Sup. Ct. (T. & C.) 224, 683. A mandamus will not be granted where other adequate legal remedies exist. People ex rel. Johnson v. Martin, 62 Barb. 570; 43 How. 52. Costs on mandamus. People ex rel. Lockport v. Supervisors of Niagara, 50 id. 353, 356. Amendments may be made in mandamus proceedings. People ex rel. Stockwell v. Earle, 47 id. 370, 374. Enforcing payment of costs in contempts. Ford v. Ford, 41 id. 169; 10 Abb. N. S. 74. Enforcing recognizance in criminal cases. People v. Hickey, 5 Daly, 365, 376; People v. Quigg, id. 365; 59 N. Y. (14 Sick.) 83. Granting a mandamus, and what to contain. People ex rel. Henry v. Nostrand, 46 N. Y. (1 Sick.) 375. A mandamus does not lie to restore an expelled member of a religious society. People ez rel. Dilcher v. German United, etc., Church, 53 N. Y. (8 Sick.) 103; reversing 6 Lans. 172; and affirming 3 id. 434. A clerk of a court may be compelled by mandamus to discharge a specific duty, as to issue an execution. People ex rel. Debennetti v. Clerk of Marine Court, 3 Abb. Ct. App. 491; 13 How. 260; 3 Abb. 309. A common-law certiorari to review erroneous decisions or proceedings of inferior courts or tribunals, will only lie when there is no other available remedy. People ex rel. Schuylerville, etc., R. R. Co. v. Betts, 55 N. Y. (10 Sick.) 600. A certiorari is a proper remedy for reviewing an assessment. Western R. R. Co. v. Nolan, 48 N. Y. (3 Sick.) 513. Habeas corpus in case of an alleged fugitive from justice. People ex rel. Lawrence v. Brody, 56 N. Y. (11 Sick.) 182. In case of imprisoned debtor. 3 Abb. Ct. App. 507; 4 Keyes, 481. Certiorari discretionary. Per ple ex rel. Curtis, 65 Barb. 9; 45 How. 289. To whom directed. People ex rel. Davis v. Hill, 65 Barb. 170. Certiorari in railroad bond cases. People ex rel. Akin v. Morgan, 55 N. Y. (10 Sick.) 587; reversing S. C., 65 Barb. 473; 1 N. Y. Sup. Ct. (T. & C.) 101. Certiorari in highway cases. People ex rel. Lawrence v. Schell, 5 Lans. 352. And in plank-road cases. People v. Freeman, 3 id 148. § 472. 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. This act shall take effect on the first day of July, 1848, except that sections 22, 23, 24 and 25 shall take effect immediately. TEMPORARY ACT. LAWS OF 1876, CHAP. 449. AN ACT EXPLAINING, DEFINING, AND REGULATING THE EFFECT AND APPLICATION OF, AND OTHERWISE RELATING TO, THE ACT, PASSED AT THIS SESSION OF THE LEGISLATURE, ENTITLED "AN ACT RELATING TO COURTS, OFFICERS OF JUSTICE, AND CIVIL PROCEEDINGS". PASSED JUNE 2, 1876; three-fifths being present. The People of the State of New York, represented in Senate and Assemlly, do enact as follows: SECTION 1. The act, passed at this session of the legislature, entitled "An act relating to courts, officers of justice, and civil proceedings", constitutes a portion of the New Revision of the Statutes; and may be styled, in any act of the legislature, or proceeding in a court of justice, or whenever it is otherwise referred to, as "The Code of Remedial Justice". SECTION 2. In construing that act, the following rules must be observed, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof: 1. The "superior city courts" are, collectively, the court of common pleas for the city and county of New-York, the superior court of the city of NewYork, the superior court of Buffalo, and the city court of Brooklyn. 2. The word, "mandate ", includes a writ, process, or other written direction, issued pursuant to law, out of a court, or made pursuant to law, by a court, or a judge thereof, or by a person acting as a judicial officer, and commanding a court, board, or other body, or an officer, or other person, named or otherwise designated therein, to do, or to refrain from doing an act therein specified. 3. The word, "judge", includes a justice, surrogate, recorder, or other judicial officer, authorized or required to act, or prohibited from acting, in the matter or thing referred to, in the provision in which that word is used. 4. The word, " clerk ", signifies the clerk of the court, wherein the action or special proceeding is brought, or wherein, or by whose authority, the act is to be done, which is referred to in the provision in which it is used, If the action or special proceeding is brought, or the act is to be done, in or by the authority of the supreme court, it signifies the clerk of the county where the action or special proceeding is triable, or the act is to be done. 5. The word, "report", when used in connection with a trial, or other inquiry, or a judgment, means a referee's report; and the word, "decision", when used in the same connection, means the decision of the court upon a hearing, or the trial of an issue, before the court, without a jury. 6. An "action of ejectment" is an action to recover the possession of some specific real property. 7. A "judgment creditor's action" is an action brought by a judgment creditor, pursuant to the provisions of sections 38 and 39 of title 2 of chapter 1 of part 3 of the Revised Statutes, or otherwise to aid in the collection of a judgment for a sum of money, or directing the payment of a sum of money. 8. A "personal injury" includes libel, slander, criminal conversation, seduction, and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person of the plaintiff, or his or her wife, husband, child, or servant. 9. An "injury to property" is an actionable act, whereby the estate of another is lessened, other than a personal injury, or the breach of a contract. 10. Personal property taken by a sheriff, in an action to recover the possession thereof, pursuant to the plaintiff's claim of the immediate delivery thereof, is said to be "replevied"; and the indorsement in writing, upon the affidavit, in behalf of the plaintiff, requiring the sheriff to take the property from the defendant, and deliver it to the plaintiff, is styled “a requisition to replevy". Such a requisition is deemed to be the mandate of the court, in which the action is brought. 11. A warrant of attachment is said to be annulled, when the action, in which it was granted, abates or is discontinued; or a final judgment, rendered therein in favor of the plaintiff, is fully paid; or a final judgment is rendered therein in favor of the defendant. But, in the latter case, a stay of proceedings suspends the effect of the annulment, and the reversal or vacating of the judgment revives the warrant. 12. The term, "judgment creditor", signifies the person who is entitled to collect, or otherwise enforce, for his own immediate benefit, a judgment for a sum of money, or directing the payment of a sum of money. 13. The words, "lunacy", and "lunatic", embrace every description of unsoundness of mind, except idiocy. 14. A "distinct parcel" of real property is a part of the property, which is or may be set off by boundary lines, as distinguished from an uncertain or undivided share or interest therein. |