131. Defendant unreasonably defending, when to pay cost.. 132. Notice of pendency of action affecting title to real property.. THE CODE OF PROCEDURE OF THE STATE OF NEW YORK. UNABRIDGED. AN ACT To simplify and abridge the Practice, Pleadings and Proceedings of the Courts of this State. Passed April 12, 1848. 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. Remedies in the courts of justice are divided into, 1. Actions. 2. Special proceedings. Questions. 1. Question. What has been said of this section? Answer. In Haviland agt. White, 7 How. 157, General Term, October, 1852, BARCULO, J., said: "It divides all remedies into 'actions' and 'special proceedings." 11. Williamsagt. Bigelow, 11 How., 86, General Term, September, 1854, GREENE, J., said: The term civil cases in the 351st section of the Code, is synonymous with the term ‘actions' as used in section 1 of the Code, in contradistinction of the term 'special proceedings. In the matter of Henry W. Cooper, 20 How., 7, Court of Appeals, September Term, 1860, which was an application to the supreme court to be admitted an attorney and counsellor at law, SELDEN. J., said: "As the application in this case could not by possibility be an action, it is of course, a special proceeding, provided it is a remedy at all under section 1. What then, is a remedy? The only judicial exposition of the subject appears to be that contained in a remark of JOHNSON, J., in Belknap agt. Waters, 1 Kern. 477. He Bays: "The Code unfortunately has not furnished us a definition of a remedy, except in so far as one can be drawn from its distribution of all remedies into actions and special proceedings. It seems to regard every original application to a court of justice for a judgment or an order as a remedy. According to this interpretation, which I deem just, the application of the appellant to the supreme court was a remedy. If we take the definition of the word remedy given by lexicographers, the result is the same. BOUVIER defines a remedy to be "the means employed to enforce a right, or redress an injury." In Holmes agt. Davis, 19 N. Y. R. 492, ÚENIO, J., said: "The general scope of that system (the Code), is to reduce the various existing ordinary remedies into one, which is denominated a cívil action." In The People ex rel. Livermore agt. Hamilton, 15 Abb., 335, General Term, February, 1863, SUTHERLAND, J., said: The right of peremptory challenge in this summary proceeding was not given directly by the act of 1847, for these statutory summary proceed ings, to get possession of land in certain cases, are not civil actions. They are not actions at all. They are summary proceedings, to prevent the delay and expense of actions. Such a proceeding is not an action by the Code (Code, §§ 1-3); it was not an action before the Code. It can hardly be said that the magistrate renders a judgment in the proceedings, even when he tries the matters controverted, without a jury. Every step of the proceeding is statutory and jurisdictional, and, therefore, the statute must be strictly pursued" (Farrington agt. Morgan, 20 Wend. 207). § 2. Action. 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 redress or prevention of a wrong, or the punishment of a public offense. 1. Question. How did this section read in 1848? Answer. As follows: §2. [1848.] An action is a regular judicial proceeding, in 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 offense. 2. Q. When was it changed? A. In 1819, when the legislature made a general revision of the Code (Sess. Laws 1849, p. 613), which they entitled an amendment. This section was then passed as it now stands. Questions. 3. Q. What decisions were made in reference to partition under this section in 1848? 4. Q. What references have been made since its change in 1849? 5. Q. What has been decided in reference to appeals from surrogates' courts? 6. Q. What decisions have been made in reference to including scire facras as an action? 7. Q. What particular definitions of an action have been given? 8. Q. Have proceedings under the mechanics' lien law been included in an actim? 9. Q. What has been decided in reference to an appeal from a county court in case of an habitual drunkard? 10. Q. What has been said in reference to an application to be admitted an attorney and counsellor at law? 11. Q. What has been said in reference to the foreclosure of a mortgage by advertisement? 12. Q. What is said of actions by the attorney general to test the title to lands? 13. Q. What is said in reference to feigned issues? 14. Q. What is said of equitable defences and counter-claims? 15. Q. What is said of mesne profits? 16. Q. What is said of summary proceedings between landlord and tenant? 17. Q. What has been said in reference to the submission of controversies under § 3721 18. Q. What has been said of proceedings under the Revised Statutes, to dissolve moneyed corporations? 19 Q. What has been said of proceedings under the Revised Statutes to compel the determination of claims to real property? 20. Q. What has been decided in reference to quo warranto? 21. Q. What is said of proceedings against the representatives of a deceased judgment debtor, under § 376? 22. Q. What has been said in reference to an application made upon petition under the Revised Statutes to compel a discovery of books and papers? 23. Q. What has been decided in reference to creditors' suits? 24. Q. What has been decided as to the reference of claims against the representatives of deceased persons? 25. Q. What has been decided as to proceedings upon mandamus? 3. Q. What decisions were made in reference to partition under this section in 1848? 4. In Backus agt. Stillwell, 3 How. 318, Special Term, October, 1848, HARRIS, J., decided, that a proceeding for the partition of lands is clearly an action within the definition contained in the second section of the Code. And that the only proper manner of bringing the action is by summons and complaint. In Watson agt. Brigham, 3 How. 290, Special Term, August, 1848, HAND, J., held, that section 109 expressly recognizes proceedings in partition under the Code, and that there could be no doubt a summons was the proper mode of proceeding. Per contra. In Traver agt. Traver, 3 How. 351, Special Term, December, 1848, BARCULO, J., said: That "after a careful search, I have been unable to find a single substantial reason for including this proceeding (partition) among the civil actions of the Code. On the contrary, I think it must be denominated a speceial, pecular, irregular judicial proceeding, which the Code would not cover, even if it were not expressly excepted." The proceedings in question have never been deemed, treated or called a legal action. The party seeking partition is termed a petitioner, not a plaintiff. He prays instead of demanding. The Revisers in their notes, say: the whole proceeding is more akin to a bill in equity than an action at law," which clearly implies that it is neither. Again: Numerous provisions of the Code seem to contemplate only the regular ordinary actions and suits; and appear to be not well adapted, if at all applicable, to par tition.' But in Myers agt. Rasback, 4 How. 83, Special Term, June, 1849, GRIDLEY, J., reviewed this decision of Judge BARCULO, and came to an opposite conclusion; and held that the old suit in equity for the "partition of lands" is now merged in the "civil actions" under the Code, and as such, may be prosecuted by summons and complaint. It is a "regular" proceeding inasmuch as it is prosecuted by and against regular parties, and according to the same forms of proceeding and rules of practice with other actions under the Code. 4. Q. What references have been made to this section since its change in 1849? 4. In Durkee agt. S. & W. R. R. Co., 4 How. 228, Special Term, December, 1849, WILLARD, J., in referring to the subject of uniting several causes of action under section 167, said: "The commissioners, doubtless, had their eye upon actions at law, when they framed the 167th section. They have not limited, and probably did not intend to limit the number of civil actions, as they are defined in sections 2, 4 and 5 to 7. There are other remedies, well known to our jurisprudence for ages, and which still exist, that cannot be comprised in either of the seven specified in section 167." In Arnold agt. Rees, 17 Hoc. 52, S. C. 18 N. Y. R. 57; September Term, 1858, COMSTOCK, J.. stated that: "Under the Code, the action for partition has now taken its place, modified as the suit in equity was, by the statutes referred to." In Croghan agt. Livingston, 25 Barb., 336, General Term, September, 1857, MITCHELL, J., after referring to sections 448 and 108 of the Code, &c., says: "These all recog. nize that there may be such an action (of partition) under the Code, and that it is to be regulated by the Code, when other provision is not made. The definition of an action in section 2 also shows the same thing." 5. Q. What has been decided in reference to appeals from a surrogate's court? A. In Sherman agt. Youngs, 6 How., 318, Special Term, December, 1851, WELLES, J., said, on an appeal from taxation of costs, on decision of an appeal from a surrogate's court: "Whether, therefore, the appeal in this case is to be regarded an action, or a special proceeding under section 2 is immaterial, as sections 303 and 318 are sufficiently comprehensive to provide for the case of an appeal from a surrogate's court," &c. 6. Q. What decisions have been made in reference to including scire facias as an action? A. In Cameron agt. Young, 6 How., 374, Special Term, December, 1851, MARVIN, J., said: "Our courts have often recognized the scire facias as a new action (6 J. R. 106; 1 Hill, 342.) The definition of an action given in the Code is sufficiently comprehensive to include the proceeding by scire facias to have execution, &c. It is a proceeding in a court of justice by which the plaintiff prosecutes the defendant for the enforcement of a right. A scire facias to revive a judgment, or rather warning the defendant to show cause why the plaintiff should not have execution thereof, being regarded as an action, sections 69 and 468, without the saving clause, are applicable to the case; and the remedy by writ of scire facias, in a case like the present, no longer exists. I can see no difficulty in resorting to the general remedy by action given by the Code. The summons and complaint may be in the usual form, &c." And in Alden agt. Clark, 11 How., 212, General Term, January, 1855, JAMES, J., said: "But Justice MARVIN in Cameron agt. Young (supra), held that as a scire facias was an action, it was abolished by section 69 of the Code, in which decision I fully concur. Since the Code, it has been several times held that the writ of scire facias to obtain execution on a judgment, when both parties are living, is entirely suspended by the Code (Catskill Bank agt. Sandford, 4 How. 100), and there seems to be no doubt but sections 283 and 284 of the Code, were intended as a substitute for the writ of scire facias in such cases, where the right to issue execution had been lost by the lapse of time." In Mills agt. Thurshy, 11 How., 130, MITCHELL, J., speaking of a proceeding by summons to show cause why a judgment should not be enforced against the estate of a deceased defendant, said: "It this proceeding were intended as a substitute for a scire facias, the relief is to be sought by a new action (Code § 428), and not under section 376," &c. 7. Q. What particular definitions of an "action" have been given? A. In Bank of Commerce agt. Rutland & Wash. R. R. Co., 10 How., 9, Special Term June, 1854, HAND, J., stated that: "An action' in the ordinary use, is simply a legal demand of one's right. (See Co. Litt. 285 a; 1 Bac. 46; 1 Tom!. L. Dic. 28.) The Code (2) has given it a little broader sense, perhaps, as suits in equity are now included." In Mayhew agt. Robinson, 10 How., 164, General Term, October, 1854, MARVIN, J., stated that the definition of an action was intended to include all actions at law and suits in equity" (§ 2). In People agt. County Judge of Rensselaer, 13 How., 400, Special Term, August, 1854, HARRIS, J., said: "Various attempts have been made to define an action. The last of which I am aware, is that made in framing the Code. Its definition, as now amended, is that it is an ordinary proceeding in a court of justice, by which one party prosecutes another for the enforcement of a right, &c. It must be conceded, I think, that this definition is not remarkable for its perspicuity or distinctness. I suppose myself, that any judicial proceeding which, if conducted to a termination, will result in a judgment is an action. Hence the definition of a judgment as given in the 245th section of the Code is, that it is a final determination of the rights of the parties in an action." In The People agt. Colborne, 20 How., 380, Special Term, February, 1861 POTTER, J., said: "One of the oldest English legal definitions of action,' is that given by Lord COKE, that it is the form of a suit given by law for the recovery of that which is one's due, the lawful demand of one's right' (Co. Litt. 285, a). Blackstone traces his definition back to the civil law, in which Cicero defines an action, to be the means by which men litigate with each other' (3 Black. Com. 117). Bracton, I think, embodies the whole idea of an action much better, in the Latin expression trinus actus, trium personarum," which seems to include not only the act of a plaintiff, who makes a lawful demand, and the act of a defendant in opposition; but also the act of a court in passing judgment between the parties. This is full and comprehensive, and I think, best expresses our notion of a legal action, in the ordinary understanding of the term. This would include the less comprehensive and less perspicuous definition of an action given in the Code (2), as well as the more apt conclusion of Justice HARRIS (supra). The word action, when used in the Revised Statutes, is intended to designate a proceeding in a court of law. But when the word "suit" is used in reference to legal proceedings by the revisers of the statute, it may apply to a proceeding either at law or in equity." |