CHAPTER V.

General Provisions relating to Actions concerning Real Property.

455. The general provisions of the Revised Statutes relating to actions concerning real property shall apply to actions brought under this act, according to the subject matter of the action, and without regard to its form.

TITLE XIV.

Provisions relating to existing suits.

456. The appeal, mentioned in section 9 of the act to facilitate the determination of existing suits in the courts of this state, may also be taken from an order, made at a special term, on a summary application in an action after judgment, when such order involves the merits of the application, or some part thereof.

2457. No writ of error shall be hereafter issued, in any case whatever. Wherever a right now exists to have a review of a judgment rendered, or order or decree made before the 1st day of July, 1848, such review can only be had upon an appeal taken in the manner provided by this act, and all appeals heretofore taken from such judgments, orders or decrees under the provisions of the Code of Procedure, which are still pending in an appellate court, and not dismissed, shall be valid and effectual. But this section shall not extend the right of review to any case or question to which it does not now extend, nor the time for appealing, nor shall it apply to a case where a writ of error has been already issued.

458. An execution may be issued without leave of the court upon a judgment docketed before the first day of July, 1848, or now or hereafter to be rendered in an action pending on that day, at any time within five years after the rendering of the judgment.

459. The provisions of this act apply to future proceedings in actions or suits heretofore commenced and now pending as follows:

1. If there have been no pleading therein, to the pleadings and all subsequent proceedings.

2. When there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings.

3. After a judgment or order, to the proceedings to enforce, vacate, modify or reverse it, including the costs of an appeal. Whenever the judges of the supreme court in any district find that the court, at any term or circuit, has not been, or will not be, able to dispose of all the cases upon the calendar, they may request the governor to assign other judges, and, if necessary, appoint extraordinary terms and circuits for the purpose of disposing of such cases. The governor may thereupon make such assignment, and the judges assigned must hold the courts accordingly.

460. An appeal may be taken from any final decree entered upon the direction of a single judge, in any suit in equity pending in the supreme court, on the first day of July, 1847, at any time before the first day of November, 1852. But this provision shall not apply to cases where a rehearing has already been had or ordered, or to the case of a

decree entered before the passage of this act, and to review which no attempt in good faith has been, or shall have been made within thirty days after notice of the entry of such decree. Such appeal shall be taken in the manner provided in sections 327 and 348. In all cases of appeal to the court of appeals, in actions which were originally commenced in the late court of chancery of this state, the court of appeals shall review the cause upon the facts and the law, without any statement or specification of facts found, or any exception taken, at the trial of any or either of them. And it shall be, and is hereby declared to be, the duty of the court of appeals, in any and all such cases, to review the whole matter upon the evidence as well as the law

461. An issue of fact joined in a county court, or court of common pleas, before the first day of July, 1848, or then pending in that court on appeal, shall be tried by a jury, unless the parties otherwise agree.

TITLE XV.'

General Provisions.

462. The words "real property," as used in this act, are co-extensive with lands, tenements and hereditaments.

2463. The words "personal property," as used in this act, include money, goods, chattels, things in action, and evidences of debt.

464. The word "property," as used in this act, includes property real and personal.

2465. The word "district," as used in this act, signifies judicial district, except when otherwise specified.

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.

2467. The rule of common law, that statutes in derogation of that law are to be strictly construed, has no application to this act.

2 468. 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 secured 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.

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.

470. The judges of the supreme court, of the superior court of the city of New York, and of the

court of common pleas for the city and county of New York, shall meet in general session, at the capitol, in the city of Albany, on the first Wednesday in August, 1852, and every two years thereafter, and at such sessions shall revise their general rules and make such amendments thereto, and such further rules not inconsistent with this Code, as may be necessary to carry it into full effect. The rules so made shall govern the supreme court, the superior court of the city of New York, the court of common pleas for the city and county of New York, and the county courts, so far as the same may be applicable.

2471. 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 Satutes, 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