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New York Code of Procedure.

CHAP, 438. AN ACT 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 People of the State of New York, represented in Senate and Assembly, do enact as follows :

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 Proceedings of the courts of this state. WHEREAS, it is expedient that the present forms of actions and pleadings in cases at common law should be abolished, that the distinction between legal and equitable remedies should no longer continue, and


that an 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:

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Sec. 1. Division of remedies.

2. Definition of an action.
3. Definition of a special proceeding.
4. Division of actions into civil and

5. Definition of a criminal action.
6. Definition of a civil action.
7. Civil and criminal remedies, not merged in each other.

1. Subjects embraced in this act.
Division of § 1. Remedies in the courts of justice are divided into,

1. Actions;
2. Special proceedings.

19 N. Y., 492 ; 21 B., 273; 11 B., 341 ; 9 B., 385; 20 How. P. R., 7,

11 Ab., 329. Definition $ 2. An action is an ordinary proceeding in a court of action. 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.

14 N. Y., 370; 28 B., 231; 25 B., 336; 21 B., 273 ; 19 B., 302; 12 B.,

387 ; 11 B., 341 ; 9 B., 301, 385 ; 7 Ab., 223; 20 How. P. R., 68; 37

B., 233; 31 How. P. R., 499; 27 How. P. R., 160; 18 Ab., 357. Definition S 3. Every other remedy is a special proceeding. of a special proceeding.

14 N. Y., 370; 15 B., 402; 3 B., 10; 11 Ab., 329; 8 Ab., 23. Divisions S 4. Actions are of two kinds: into civil

i. Civil; and crimi

2. Criminal. nal,

11 B, 106. Definition $ 5. A criminal action is prosecuted by the people of the nal action state, as a party, against a person charged with a public

offense, for the punishment thereof. Definition S 6. Every other is a civil action. of a civil action.

19 N. Y., 492; 11 B., 341. Civil and S 7. Where the violation of a right admits of both a civil criminal

and criminal remedy, the right to prosecute the one is not remedies not merged merged in the other. other. S 8. This act is divided into two parts: Subjects

The first relates to the courts of justice, and their jurisdicembraced


The second relates to civil actions commenced in the courts of this state, after the first 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

in this act.


appeals, to the supreme court, to county courts, and to the superior court of the city of New York.

19 B., 666; 8 B., 273; 4 Ab., 44; 3 Ab., 108, 136; 1 Ab., 123; 18 Ab.,



TITLE I. Of the Courts in general.

II. Of the Court of Appeals.
III. Of the Supreme Court; Circuit Courts; and Courts of

Oyer and Terminer.
IV. Of the County Courts.
V. Of the Superior Court, and Court of Common Pleas in the

city of New York, and the Mayors' and Recorders'

Courts in other cities.
VI. Of the Courts of Justices of the Peace.
VII. Of Justices' and other inferior Courts in cities.



SEC. 9. The several courts of this state.

10. Their jurisdiction generally. $ 9. The following are the courts of justice of this state: The soveral

courts of 1. The court for the trial of impeachments.

this state. 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. '
16. The justices' courts in the city of New York.
17. The justices' courts of cities.
18. The police courts.

11 B., 472 ; 8 Ab., 273.
10. These courts shall continue to exercise the jurisdic. Their
tion now vested in them respectively, except as otherwise tion

jurisdic prescribed by this act.

generally. 26 B., 223 ; 1 Ab., 113.



Cases in

SEC. 11. Its jurisdiction.

12. May reverse, affirm or modify judgment or order appealed from.
13. Terms of the court. Preference of causes.
14. Number of judges who may give judgment.
15. Sheriffs to provide rooms, &c., for court.

16. Court may be adjourned to places other than those designated by law.

$ 11. The court of appeals shall bave exclusive jurisdiction which court of appeals

to review upon appeal every actual determination hereafter shall bave made at a general term by the supreme court, or by the suJurisdic. perior court of the city of New York, or the court of common

pleas for the city and county of New York, or the superior court of the city of Buffalo, 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 in volving 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 or discontinues the action, and when such order grants or refuses a new trial; but no appeal to the court of appeals, from an order granting a new trial on a case made or bill of exceptions, shall be effectual for any purpose, unless the notice of appeal contain an assent on the part of the appellant, that if the order be affirmed, judgment absolute shall be rendered against the appellant. Upon every appeal from an order granting a new trial, on a case made or on exceptions taken, if the court of appeals shall determine that no error was committed in granting the new trial, they shall render judgment absolute upon the right of the appellant ; and after the proceedings are remitted to the court from which the appeal was taken, an assessment of damages or other proceedings to render judgment effectual, may be then and there bad, in cases where such subsequent proceedings are requisite.

3. In a final order affecting a substantial right made in a special proceeding, or upon a summary application, in an action after judgment; and upon such appeal to review any intermediate order involving the merits and necessarily affecting the order appealed from.

But such appeal shall not be allowed in an action originally commenced in a court of a justice of the peace, or in a niarine court of the city of New York, or in an assistant justice's court of that city, or in a justice's court of any of the cities of this state, unless any such general term sball, by order duly entered, allow such appeal before the end of the next term after which such judgment was entered. The fore

When one

CHẤP, XL going prohibition shall not extend to actions discontinued before a justice of the peace, and prosecuted in another court, pursuant to section sixty and sixty-eight of this Code.

4. An appeal from any order to the court of appeals affecting a substantial right, arising upon any interlocutory proceeding, or upon any question of practize in the action, may be heard as a motion and noticed for hearing for any regular motion day of the court.

Amended by Laws of 1851, ch. 479 ; 1852, ch. 392; 1857, ch. 723 ; 1862, ch. 460 ; 1865,

ch. 615; 1866, ch. 824; 1967, ch. 781.
22 N. Y., 320; 20 N. Y., 527 ; 19 N. Y., 211, 532; 18 N. Y., 232, 483 ; 17 N. Y., 161; 16

N. Y., 214, 296, 611; 15 N. Y., 594 ; 12 N. Y., 34; 11 N. Y., 55, 275, 277; 6 N. Y.,
465; 4 N.Y., 417; 2 N. Y., 188, 567; 1 N. Y., 424; 27 B., 633; 22 B., 278, 503; 8 B.,
353; 7 B., 582; 20 How. P. R., 7; 18 How. P. R., 533 ; 16 How.P.R., 567 ; 9 How.
P. R., 95; 8 How, P. R., 328; 6 How. P. R., 280, 320; 5 How. P. R., 199; 4 How.
P. R., 78, 140, 215, 360 ; 3 How. P. R., 334, 361, 417, 418, 419, 420, 425, 426 ; 13 AL.,
183; 12 Ab., 120 ; 11 Ab., 16, 328 ; 9 Ab., 174; 6 Ab., 127; 4 Ab., 108; 3 Ab., 58;
34 N. Y., 356, 361; 32 N. Y., 479 ; 30 N. Y., 134, 328; 29 N. Y., 634; 28 N. Y., 123;

27 N. Y., 639. $ 12. The court of appeals may reverse, affirm or modify the judgment or or- May reverso der appealed from, in whole or in part, and as to any or all of the parties; and its or modify judgment shall be remitted to the court below, to be enforced according to law. or order

28 B., 223 ; 17 How. P. R., 394 ; 10 How. P. R., 371 ; 4 How. P. R., 184; 1 Ab., 263 ; appealed 17 Ab., 33.

from. $ 13. There shall be four terms of the court of appeals in each year, to be held Terms of at the capitol, in the city of Albany, on the first Tuesday of January, the fourth courts of Tuesday of March, the third Tuesday of June, and the last Tuesday of Septem- when and ber, and continued for as long a period as the public interests may require. But where to

be held. the judges of the said court may, in their discretion, appoint one of said terms in each year to be held in the city of New York. Additional terms shall be

term may appointed and held at the same place by the court when the public interest be held in requires it. The court may by general rules, provide what causes shall have a

New York;

additional preference on the calendar. On a second and each subsequent appeal to the terms. court of appeals, or when an appeal has once been dismissed for defect or irregu- Rules rolalarity, the cause shall be placed upon the calendar as of the time of filing the tive to pofirst appeal, and may be noticed and put on the calendar for any succeeding term; and whenever, in any action or proceeding in which the people of this calendar. state, or any state officer, or any board of state officers, is or are sole plaintiff or Certain defendant, an appeal has been or shall be brought from any judgment or order appeals for or against him or them, in any court, such appeal shall have a preference in preference. the supreme court and in the court of appeals, and may be moved by either party out of the order on the calendar.

Amended by Laws of 1851, ch. 479 ; 1852, ch. 392; 1858, ch. 306; 1859, ch. 428; 1862,

ch. 460, 1863, ch. 392; 1865, ch. 615.

25 How. P. R., 370. § 14. The concurrence of five judges is necessary to pronounce a judgment. Number of If five do not concur, the case must be reheard. But no more than two rehear- judges who ings shall be had, and if, on the second rehearing, five judges do not concur, judgment. the judgment shall be affirmed. When five of the judges do not concur and a rehearing of the case is ordered, the judges shall file the opinions read by them with the reporter of the court, but such opinions shall not be published. No person other than the judges of the court, the reporter of the court, or the counsel or attorney of either of the parties to the action, shall have access to or a copy of said opinions, but such counsel or attorney may have access to and a copy thereof.

As amended by Laws of 1851, ch, 479; 1867, ch. 781; 3 N. Y., 376, 556. § 15. If, at a term of the court of appeals, proper and convenient rooms, both Sheriffs to for the consultation of the judges and the holding of the court, with furniture, provide

c., attendants, fuel, lights and stationery, suitable and sufficient for the transaction for court. of its business, be not provided for it, in the place where by law the court may be held, the court may order the sheriff of the county to make such provision, and the expense incurred by him in carrying the order into effect, shall be a county charge.

14 N. Y., 580. § 16. The court of appeals may be held in other buildings Court may than those designated by law as places for holding courts, ed to places and at a different place in the same city from that at which it other than

sition of cases on

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