Слике страница

was claimed exist at the present time in the administration of justice. Perhaps one of the most constant terms upon the lips of men and in public prints to-day has been the words "the law's delays", and there have been many criticisms many of them harsh, some of them extreme,- as to the delay and the unnecessary complexity in the administration of justice in this State. Your committee invited to appear before it representatives of all the associations of lawyers in the State, the judges of all the courts and persons generally interested in the administration of justice. There is, unfortunately, no comprehensive official publication of statistics of the administration of justice in the State of New York and it is difficult to get an authoritative, comprehensive statement of facts showing the business of the courts in different parts of the State from which one may determine with any accuracy what work is being done by courts and judges and how far in arrears different courts are in the discharge of the various kinds of work which they are called upon to perform. One of the incidental reforms which we have sought to introduce has been a provision requiring the Legislature to provide for the collection and publication annually of the statistics of the judicial business of the State. One thing every lawyer who practices in this State does know is that the civil procedure of this State, regulated by the Code of Civil Procedure, is a mass of conflicting statutory rules, many of them without any apparent reason, conflicting, shifting, changing from session to session of the Legislature and finally built up into a great mass of inelastic regulations of procedure under which legal rights arise with respect to things that should be merely rules of practice.

Students of our system and of the similar systems in other states have for some time past pointed out the absurdity of this system and the need of a radical change in it and the suggestions of the most careful and most eminent students of this subject have been directed toward the separation of the ordinary rules of procedure in courts from the Legislature and placing them under the control of the courts so that they might be more flexible than statutory requirements can he and so that the Legislature should not be called upon constantly to change the statutes of the State in order to meet some details of mere precedure in court. But the difficulty has been, and the difficulty that confronted your committee at the outset of this problem was, to draw the line between those things which should be regulated by statute and those things which should be left to rule of court. Three or four years ago the Legislature, in response to the demand of the entire profession, appointed a commission which, after a large amount of very thorough, careful, painstaking, intelligent work, presented at

the last session of the Legislature a report which embodied a short and simple practice act, in 61 sections, which was to be the legislative control of procedure and provided that the courts should make rules of practice not inconsistent with this act, and in the meantime submitted a model code of rules. That report was transmitted to the Legislature of the State by the Governor at the last session and in pursuance of his recommendations the Legislature appointed a joint committee to examine this report and itself report at the next session of the Legislature with respect. to its adoption. The report came into the hands of the committee and the members of this Convention after the beginning of our session and when we had been here some time. It was impossible in the time at our disposal to give it that critical analysis that would have justified our recommending its adoption by the Legislature, but enough was apparent on the face of the report to illustrate the feasibility of carrying out what had been recommended by students of this subject, and, therefore, we have seized upon that and as the fundamental reform in our procedure we have recommended a provision here to the effect that the Legislature at its next session shall act upon that report. We don't say "Shall adopt it" or "Shall approve it," but shall act upon it and shall enact a short and simple practice act and shall adopt a body of rules of civil practice, and that thereafter the rules of practice shall be made or amended or altered from time to time by the judges of the Court of Appeals and the Supreme Court, acting through such number, or body of them, as the Legislature may prescribe, and if it fails so to prescribe, then by the justices of the Supreme Court and the judges of the Court of Appeals; that every five years the Legislature shall appoint a commission to determine whether or not any change is needed in the practice act or in the law affecting procedure, civil procedure, and that the Legislature shall act upon that report by a single bill, but save and only by such bill shall the Legislature pass any law affecting the civil procedure, unless at the suggestion or recommendation of the judges named and who are concerned in the making of civil rules.

It is our judgment that thereby the civil procedure of this State will be relieved from the iron bands of statutory control in minute matters which ought to be regulated by rule of the court, and the vast mass of technical motions and orders and proceedings intermediate the bringing of a suit and the trying of the issue upon the trial calendar of the court will be greatly reduced and largely abolished. In that connection, we have also recommended the authorization of an appointment by the Supreme Court of Supreme Court Commissioners in the First and Second Departments, and with authority in the Legislature to extend it to other

departments as it may see fit, who shall act, who shall be salaried officials, prohibited from practicing law, who shall be available to act as commissioners in condemnation proceedings, to whom may be referred, either by standing rule or by order, any matters which the court may from time to time determine to refer to them, and to whom may also be referred for hearing and determination. referable issues. And, in that connection, we recommend the continuance with certain limitations, of the official referees, restricting the present general and rather expanding provisions of the statute for official referees, and authorizing their employment in matters of this same kind. Bearing in mind that perhaps the most important adjunct to the court is the attorney, we have included a provision vesting under the Constitution that control which the Legislature has sought to give to the Court of Appeals to prescribe the standards and the regulations concerning the admission to practice of attorneys and counselors at law. Now, so much for the matters affecting procedure.

In the organization and the conduct of courts we found several points of congestion. Through most of the counties of the State there seems to be comparatively little delay after the case is at issue in reaching it for trial. In the city of New York, in the First Department it requires a period of from nine to ten months for the ordinary case on the trial calendar to be reached for trial after it is at issue. There is a much greater congestion in the 9th district. There is almost the same in the Second Department second district. At special Terms, the delay is not so great. In fact, in New York, there is not now more than a period of three or four months intervening between putting a special term case on the calendar and reaching it for trial. In the Appellate Divisions in the First and Second Departments, we found a condition which requireed some careful consideration. The Appellate Division of the First Department is to-day disposing of a larger number of cases, I think it is safe to say, than any court in Christendom, in a given time, with a given number of judges. In the year 1914, that court heard and determined more than fifteen hundred appeals, besides eight hundred and forty motions, original motions in the court.

The court is composed, as you know, of seven justices appointed to it. In addition, there is in that department an appellate ferm composed of three justices assigned from month to month, changing from month to month, who now hear and determine appeals from the city court and appeals from the municipal court; and last year they disposed of upwards of 2,100 appeals from the municipal courts-of course they are generally comparatively simple matters, heard upon the typewritten records - besides

No court of

three or four hundred appeals from the city court. seven judges can properly continue to dispose of that amount of business which the Appellate Division has to dispose of. In Brooklyn, in the Second Department, the number is not quite so large, but large enough. Last year the court in the Second Department disposed of 1,102 appeals and 643 motions in that court; whereas in the Third Department, there were but 388 appeals and 120 motions disposed of, and in the Fourth Department but 600 appeals, and I have been unable to get the number of motions. So that the point of congestion lies in the Supreme Court, Appellate Division of the First Department and the next point, the Supreme Court, Appellate Division of the Second Department. In the Court of Appeals we found an accumulation of upwards of 600 cases on the calendar to-day. The Court of Appeals has made no new calendar since May, 1914, and there are to-day on the calendar of the court, or there were, rather, on the 28th of May, 622 cases pending. It takes about two years for a case to be reached in the Court of Appeals after the return has been filed, and that court decides about a hundred cases every year less than come to it so there is a constantly growing accumulation of cases there.

Now, there are two ways, of course, to deal with this question. One is by limiting the jurisdiction and the other by increasing the number of judges or the organization of the court. So far as the Appellate Division in the First Department is concerned, it is to be said that that court has no arrearage of business. It has disposed of all the cases argued before it. It carried over last year only two undecided cases after the 31st day of December. It was a subject of some complaint at the bar that, to do this, the court is not able to afford counsel that full opportunity for argument and discussion which counsel are accustomed to think is their due. But, whether that be so or not, it is quite obvious that the institutions of the State cannot be framed upon the assumption that an Appellate Division with the jurisdiction that our Appellate Divisions have can properly consider and determine fifteen hundred appeals a year. That is more than twice the number that any other court except the Appellate Division in the Second Department disposes of and it is thirty per cent. more than that court disposes of.

Now, in the amendments which we have suggested, we have endeavored to make provision for using the entire judicial force of the court and in such manner as the exigencies of the business from time to time should require: in the first place, that they increase the permanent, assigned justices of the Appellate Division in the First and Second Departments by adding three to the First

Department and two to the Second Department. Then, we have provided what the judges, one and all, urged as a means of always enabling the court to be kept up to one hundred per cent. efficiency, a provision empowering the presiding judge to call in a judge from the body of the court to take the place of any regularly assigned judge absent temporarily, or temporarily incapacitated by illness or what not, to sit in the court for a period of not exceeding four months without any formal designation through the Governor but merely on the assignment of the presiding judge. Then we have provided for the first department that the court might, if it should determine to be proper, if it should find it required by the exigencies of business, sit in two parts, each part consisting of five justices under the direction of the same presiding judge, no part to be of less than five judges, and requiring a quorum of at least three to concur in a decision. We have provided, moreover we have kept in the provision which authorizes the presiding justices of all the departments in the event that it is found that one department cannot dispose of the cases before it, to assign to some other department some of the cases pending in that court; and we have also empowered them to call upon the Governor if they find it proper for additional permanent assignments to the Appellate Division. So that under this machinery, the Appellate Division in the first department and in the second department may always be kept sufficiently organized to dispose of all of the Appellate work which goes to it, as one body, or as two bodies, as may be found necessary in carrying out the work. Then we have made the Appellate term a somewhat more permanent court than it has been, by providing that the justices shall be assigned to it in the first and second departments for a period of one year at a time. We do not continue we do not impose upon them the same limitations which are imposed upon the justices of the Appellate Division who are prohibited from performing any other work in their department than that of the Appellate Division, but we leave them available for ex parte business or any general business they have time to perform, but provide that they be assigned through the Appellate Division, and we make the Appellate Term a court of appeals for the City Court as it is now, for the Municipal Court of the City of New York as it is now, for the county courts in counties outside of the first department and for the Court of Special Sessions in the city of New York and in the second department. So that thereby the Appellate Division will be relieved of a certain kind of business that now goes to it which will be disposed of by the Appellate Term. Since this report was formulated it has been suggested that in view of the increase which we have recommended in the

« ПретходнаНастави »