THE

CODE OF PROCEDURE.

As Amended to 1876.

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 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:

General Definitions and Divisions.

1. Remedies in the courts of justice are divided into,

1. Actions.

2. Special proceedings.

22. 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 re dress or prevention of a wrong, or the punishment of a public offense.

3. Every other remedy is a special proceeding.

84. Actions are of two kinds:

1. Civil.

2. Criminal.

5. A criminal action is prosecuted by the people of the state, as a party, against a person charged with a public offense, for the punishment thereof.

26. Every other is a civil action.

7. Where the violation of a right admits of both a civil and a criminal remedy, the right to prosecute the one is not merged in the other.

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

PART I.

Of the Courts of Justice, and their Jurisdiction. TITLE of the Courts in general.

II. Of the Court of Appeals.

111. 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

TITLE I.

Of the Courts in General.

39. The following are the courts of justice in this state:

1. The court for the 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.

18. 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.

10. These courts shall continue to exercise the jurisdiction now vested in them respectively, except as otherwise prescribed by this act.

TITLE II.

Of the Court of Appeals.

11. The court of appeals shall have exclusive Jurisdiction to review upon appeal every actual determination hereafter made at a general term by the supreme court, or by the superior 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 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, or discontinues the action, end when such order grants or refuses a new trial,