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OF

CIVIL PROCEDURE

OF THE

STATE OF NEW-YORK.

REPORTED COMPLETE

BY THE
COMMISSIONERS ON PRACTICE AND PLEADINGS.

ALBANY:

WEED, PARSONS & CO., PUBLIC PRINTERS.

1850.

REPORT.

TO THE LEGISLATURE OF THE STATE OF NEW-YORK.

THE COMMISSIONERS ON PRACTICE AND PLEADINGS have the honor to submit herewith, their complete Report of a Code of Civil Pro

CEDURE.

This Code is intended to embody the whole law of the state, concerning judicial remedies in civil cases, and to supersede the third part of the Revised Statutes, a portion of the first and second, a large number of subsequent statutes, and all of the common law, on the subject of civil remedies.

Having entered upon the duties of their commission, with an earnest conviction that the time had arrived, when great changes in judicial procedure ought to be made ; charged by the constitution and the statute, under which they were appointed, with an entire revision of the existing system ; and specially enjoined to make changes which struck at its foundation, it can excite no surprise, that the reforms they have proposed are coruprehensive and fundamental. In bringing their labors to a conclusion, it is their highest hope, that the favorable opinions which have encouraged them so far, may not be forfeited upon maturer experience.

It was a question with the commissioners of some embarrassment, how far it was wise to go into details. There were two opposite difficulties to be avoided ; on one hand was the danger, by provisions too general, of leaving a wide space for judicial discretion ; on the other, equal danger, by going into minute details, .of making the practice inflexible and intricate, increasing the risks of mischance, and leaving unprovided for whatever particulars were unforseen. Whether they have succeeded in finding, what they desired, a middle path between a judicial discretion, too wide for safety on the one hand, and too narrow for convenience ou the other, can only be known by the result.

It is impossible, within the compass of this communication, to give any other than the most general account of the Code, as it is now presented. It is divided into four parts. The first relates to the courts of justice, their organization and jurisdiction, and the functions and duties of all judicial and ministerial officers, connected with them. The second embraces the subject of civil actions, with all their incidents ; the third relates to special proceedings; and the fourth to evidence.

The essential features of the original code remain of course unehanged by the present report. Every day's experience adds new testimony to the soundness of its theory, and to the beneficial effects of its reduction to practice. The system which it traced out, and which is now filled up, will, it is hoped and believed, remain the settled policy of the state, for it is founded upon just and immutable principles.

In completing the system, and adapting to each other the parts already enacted and those which are now for the first time submitted, changes of minor details were of course necessary ; the addition of new provisions affected to some degree the previous ones; and the frequent references to the old law, which the existing code contains, are in the present report generally omitted as unnecessary, because it is proposed that the old shall be superseded. With these exceptions, and a few other changes in details, which experience has shown to be desirable, such as a modi: fication of the reply in pleading, and a reduction of costs in certain cases, the present complete report will be found not to depart, in any essential respect, from that which was enacted as a part of the system.

The purpose of the constitutional provision and of the statute under which this code is prepared, was to make legal proceedings more intelligible, more certain, more speedy, and less expensive. Heretofore the records of the courts, have been sealed books to the mass of the people. Though concerned in them as suitors, and participating in them as jurors, they were repulsed by strange forms, and technical language. If the law could have been administered with absolute certainty, without delay, and without expense, yet if it had been unintelligible to them, it would not have been satisfactory. In a country where the people are sovereign, where they elect all officers, even the judges themselves, where education is nearly universal, it was not long possible, to keep the practice of the courts enveloped in mystery.

The Commissioners have never lost sight of these considerations. In aiming at directness and efficiency, they have aimed also at dif, fusing a knowledge of legal proceedings; and there is, they trust, nothing in this code, which any person of ordinary intelligence and education cannot understand. And although the law of rights is a vast science, the accumulation of numerous countries and ages, which it requires study and patience to comprehend, yet it is believed, that the practice of the courts is here set forth in such a manner, that no person need have occasion to witness a legal proceeding, read a pleading, or render a verdict, the meaning of which, he does not comprehend.

· That the expense of legal proceedings has been greatly diminished by the existing code, is generally admitted ; it will be diminished still more by the present. That certainty is promoted by the abolition of needless distinctions, the disuse of technical forms, and a free use of the power of amending errors and defects, and despatch by fre

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