The Civil Practice Manual of the State of New York, Containing Civil Practice Act, Surrogate Court Act, Justice Court Act, City Court Act, Court of Claims Act, Passed by the Legislature of 1920, Effective April 15, 1921

PREFATORY NOTE.

Code procedure in the State of New York may be said to have had its origin in 1848. In that year the Legislature enacted (c. 379) the Code of Procedure of 391 sections, usually known as the Field Code, prepared by a commission appointed pursuant to the provisions of the Constitution of 1846, headed by David Dudley Field.

The Field Code was not, as was readily conceded by its authors, a comprehensive practice treatise. At the legislative session succeeding its passage it was amended in many details and was increased to 473 sections (L. 1849, c. 438).

There continued to be dissatisfaction with the Code, which manifested itself in efforts for comprehensive amendment. In 1870 the legislature provided for the appointment of a commission to revise and consolidate procedural statutes. In 1876 that commission, headed by Montgomery H. Throop, reported a Code of Remedial Justice in 13 chapters and 1496 sections and it was enacted (L. 1876, c. 449). This Code, commonly known as the Throop Code, was extensively amended by the legislature of 1877 (c. 416) and its name changed to Code of Civil Procedure. The Throop commission, as part of its plan, proposed to the legislatures of 1877, 1878 and 1879 additional chapters to the Code. These ail failed of enactment in these years by the action of the then governor. They were finally enacted by the legislature of 1880 (c. 178), comprising chapters 14 to 22 and sections 1496 to 3356.

Titles 1 and 2 of chapter 23, comprising sections 3357 to 3397 of the Code of Civil Procedure, were added by Laws of 1890, chapter 95, and title 3 of that chapter, sections 3398 to 3441, was added by Laws of 1897, chapter 419.

When the project of consolidating the statutes of the state was proposed, it was contemplated that the revision of the practice should be coincident with it, and the act appointing the Statutory Revision Cɔmmission (L. 1895, c. 1036) provided that the commission should report in what respect the civil practice in the courts of the State could be revised, condensed and simplified. The commission in 1900 reported a rearrangement and partial revision of the practice statutes, dividing them into several codes, but its plan was not adopted.

The Board of Statutory Consolidation, headed by Adolph J. Rodenbeck, was appointed under Laws of 1904, chapter 664, which provided among other things that the board should report amendments to condense and simplify the existing practice. The board deferred making recommendations as to practice until it had substantially completed its work upon the Consolidated Laws, which were enacted in 1909 and subsequently. By Laws of 1912, chapter 393, the board was continued and directed to report to the next legislature a plan for classification, consolidation and simplification of the civil practice in the courts of the state. In 1913 it reported a plan and was directed (c. 713) to prepare and present to the legislature a practice act, rules of court and short forms, as recommended in its report to the legislature of 1913.

The board proceeded to carry out the plan thus outlined and presented to the legislature of 1915 a practice act of 71 sections, dealing with general principles of practice, to be enacted by the legislature, 401 proposed rules, dealing with details, which were to be adopted by the courts, and separate codes for surrogate's, justice's and certain other

courts.

The Legislature refused to accept this plan, and appointed a joint committee, with J. Henry Walters as chairman, to consider the whole matter. That committee after four years of study reported to the legislature in 1919 a series of acts to take the place of the present Code of Civil Procedure and these, after some amendment, were enacted by the legislature of 1920 to take effect April 15, 1921. They comprise a Civil Practice Act (c. 925) of 1544 sections, a Surrogate Court Act (c. 928) of 319 sections, a Court of Claims Act (c. 922) of 37 sections, a New York City Court Act (c. 935) of 82 sections, a Justice Court Act (c. 937) of 494 sections, and certain amendments to the Consolidated Laws carrying into them various provisions of the Code of Civil Procedure.

The Civil Practice Act is a rearrangement, in considerable part without substantial revision, of such provisions of the Code of Civil Procedure as are not transferred to other acts; the Surrogate Court Act is a re-enactment of chapter 18 of the Code without essential change; the Court of Claims Act is a re-enactment of title 3 of chapter 3 of the Code; the New York City Court Act is a re-enactment of title 4 of that chapter and of title 1 of chapter 20, without substantial change and retaining the various provisions peculiar to that court; and the Justice Court Act is a re-enactment of title 19 of the Code with the addition of certain provisions also applicable to courts of record taken from other parts of the Code.

Regulations as to certain remedies have been transferred entirely to the Consolidated Laws. The provisions as to the action for dower, the action to compel the determination of a claim to real property, the action for waste, the action for nuisance, the action for trespass, proceedings to foreclose a mortgage by advertisement, proceedings to discover the death of a life tenant, and proceedings for voluntary partition of an incompetent's real property are transferred to the Real Property Law (c. 930). The provisions as to condemnation are transferred to the Condemnation Law (c. 923). The provisions as to the action for causing the death. of decedent, the action by or against an executor or an administrator, the action by a creditor against a decedent's next-of-kin, legatee or devisee, and the action to establish a will or construe a devise are transferred to the Decedent Estate Law (c. 919). The provisions as to actions or proceedings by or against unincorporated associations are transferred to the General Associations Law (c. 915).

The Civil Practice Act, which is applicable to all courts of record, makes many minor and some substantial changes in the practice. The demurrer is abolished (sec. 277), and objections in law to pleadings are to be taken by motion. In justices' courts, however, the demurrer is retained (Justice Court Act, sec. 126), though in the Municipal Court of the City of New York it does not exist (Municipal Court Act, sec. 78). In the New York City Court Act (sec. 39) there is a reference, probably by inadvertence, to the demurrer as existing. The rules of pleading in the Practice Act have been broadened in many respects. The sections with regard to the taking of depositions have been rewritten and the right to take depositions before trial amplified and simplified. Writs, except the writ of habeas corpus, which is possibly constitutionally protected, and the common law writ of inquiry, which seems to be retained (sec. 490), have been abolished and the relief is to be granted by orders.

The Legislature (L. 1920, c. 902) provided for a convention of justices of the Supreme Court and others to formulate and adopt suitable rules to supplement the practice act. The rules as formulated by this convention are contained in this volume, though at the time of going to press they had not been filed, as provided by the statute, in the office of the Secretary of State.

Some 600 sections of the Code of Civil Procedure have been transferred heretofore to various of the Consolidated Laws and the disposition. of these sections as well as of those so transferred by the legislation of 1920 is shown in the table prefacing this volume.

For the convenience of the New York City bar, the New York Municipal Court Code has been included.

The indices, which are analytical and descriptive, as far as possible, have been prepared with great care and upon a consistent plan, having in view the needs and point of view of the busy practitioner.

The editor expresses his acknowledgment of the assistance in various ways in the preparation of the volume of Mr. Paul R. James of the New York bar.

December 1, 1920.

E. H. W.

DISTRIBUTION TABLE.

Table showing the Distribution of the Code of Civil Procedure in the New Practice
Acts and in the Consolidated Laws.