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A creditor's suit is undoubtedly an action within this definition. Quick v. Keeler, 2 Sandf. S. C. R., 231. But in Dunham v. Nicholson, ib., 636, this dictum was qualified; and it is there said, "Though it (a creditor's suit) assumes the form of an action, it is really a proceeding to carry out an existing judgment." The proceeding to obtain a discovery of books, &c., is not an action, per Sill, J., in Follett v. Weed, 3 Pr. R., 303, 304, 1 Code Rep., 65.

A proceeding for partition of land is clearly an action, per Harris, J., in Backus v. Stillwell, 3 Pr. R., 318; 1 Code Rep., 70; and per Gridley, J., in Myers v. Rasback, 2 Code Rep., 13; 4 Pr. R., 83. Myers v. Borland, ib. But, per Barculo, J., the proceedings in question have never been deemed, treated, or called a legal action, the Revisers in their notes say, they resemble more "a bill in equity than an action at law," which clearly implies that they are neither. Traver v. Traver, 3 Pr. R., 351, 353.

§ 3. [3.] Special proceeding.-Every other remedy is a special proceeding.

The proceeding supplementary to an execution is a special proceeding, per Willard, J., in Davis v. Turner, 4 Pr. R., 190, 192; and the proceeding to assess damages on the laying out of plank roads under chapter 210 of the laws of 1847, is most undoubtedly what under the code is denominated a special proceeding," per Mason, J., in re Fort Plain and Cooperstown Plank Road Co. Ex parte Ransom, 3 Code Rep., 148.

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$4. [4.] Division of actions.-Actions are of two kinds : 1. Civil;

2. Criminal.

5. [5.] (Amended 1849.) Criminal action.—A criminal action is prosecuted by the people of the State, as a party, against a person charged with a public offence, for the punishment thereof.

Of course, this section does not mean that a criminal action is prosecuted against a person for the punishment of the offence, but it certainly says so. Stoughton's Review, p. 8.

§ 6. [6.] Civil action.-Every other is a civil action.

$7. [7.] Remedies not merged.-Where the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other.

Taken substantially from 2 R. S., 390-2.

§ S. [S.] (Amended 1849.) Division of act.-This act is divided into two parts:

The first relates to the courts of justice and their jurisdiction;

The second relates to civil actions commenced in the courts of this State after the 1st day of July, 1848, except when otherwise provided therein, and is distributed into fifteen titles. The first four relate to actions in all the courts of the State; and the others, to actions in the supreme court, in the county courts, in the superior court of the city of New York, in the court of

common pleas for the city and county of New York, in the mayors' courts of cities, and in the recorders' courts of cities, and to appeals to the court of appeals, to the supreme court, to the county courts, and to the superior court of the city of New York.

This section limits the provisions of the code to proceedings in suits commenced after the code took effect. Merritt v. Wing, 4 Pr. R., 14. Clark v. Crandall, 4 Pr. R., 127; 2 Code Rep., 70. Truscott v. King, 4 Pr. R., 173. Thompson v. Blanchard, 4 Pr. R., 260. Doty v. Brown, 4 Pr. R., 429. The superior court, however, proceeding on the principle that an appeal is in some respects a new action, have held, contrary to the decisions in the supreme court, that in a suit commenced before the code took effect, in which an appeal is brought after the code took effect, this section extends the provisions of the code to the proceedings and costs on such appeal. Kanouse v. Martin, 2 Sandf. S. C. R., 739, 741; 3 Code Rep., 203. In Overseers of Clayton v. Beedle, 1 Barb. S. C. R., 11, Allen, J., following the dicta of Jewett and Cowen, JJ., in McDonald v. New York City Savings' Bank, 2 How. Pr. R., 35, and Moore v. Cooley, 2 Hill, 412, held, that a writ of error was not a suit or action.















Of the Courts in general.

SECTION 9. The several courts.

10. Their jurisdiction.

$9. [9.] (Amended 1849.) The several courts.—The following are the courts of justice of this State.

1. The court for trial of impeachments.

2. The court of appeals.

3. The supreme court.

4. The circuit courts.

5. The courts of oyer and terminer.

6. The county courts.

7. The courts of sessions.

8. The courts of special sessions.

9. The surrogates' courts.

10. The courts of justices of the peace.

11. The superior court of the city of New York.

12. The court of common pleas for the city and county of

New York.

13. The mayors' courts of cities.

14. The recorders' courts of cities.

15. The marine court of the city of New York.

16. The justices' courts in the city of New York.

17. The justices' courts of cities.

18. The police courts.

§ 10. [10.] Their jurisdiction generally.-These courts shall continue to exercise the jurisdiction now vested in them respectively, except as otherwise prescribed by this act.

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§ 11. [11.] (Amended 1849, 1851, 1852.) Jurisdiction.The court of appeals shall have exclusive jurisdiction to review upon appeal, every actual determination hereafter made at a general term, by the supreme court, or by the superior court of the city of New York, or the court of common pleas for the city and county of New York, in the following cases, and no other:

1. In a judgment in an action commenced therein, or brought there from another court; and upon the appeal from such judgment, to review any intermediate order involving the merits and necessarily affecting the judgment.

2. In an order affecting a substantial right, made in such action, when such order in effect determines the action and prevents a judgment, from which an appeal might be taken.

3. In a final order affecting a substantial right, made in a special proceeding, or upon a summary application in an action, after judgment.

4. But such appeal shall not be allowed in an action originally commenced in a court of a justice of the peace, or in the marine court of the city of New York, or in an assistant

*See Rules in Appendix; and Laws of 1847, pp. 263, 306, 312, 313, 320, 322, 425, 426, 555, 638.

justice's court of that city,* or in a justice's court of any of the cities of this State.

1. Nature of the amendments.

In the Code of 1848, this section was without the now second subdivision, and instead of the words, "or in any of the justices' courts of this State," had the words, "or in the municipal court of the city of Brooklyn, or in a justices' court of the cities of Albany, Troy, and Hudson, respectively." The amendment of 1849 consisted in striking out the words, "the cities of Albany, Troy, and Hudson, respectively," and substituting therefor the words, "any of the cities of this State." The amendment of 1851 was, the addition of the now second subdivision; the omission, where the asterisk is placed, of the words " or the municipal court of the city of Brooklyn ;" and likewise the insertion, as a separate subdivision (subdivision 4), of the words "in an order granting a new trial." The amendment of 1852 consisted in striking out subdivision 4. While subdivision 4 remained in force, only one decision is reported upon it, and that is Moore v. Westervelt, 1 Code Rep. N. S., 415. As to the municipal court of the city of Brooklyn ("the city court of Brooklyn"), see Laws of 1849, p. 171, s. 6. Laws of 1850, p. 148, s. 1.

2. Additional jurisdiction of Court of Appeals.

In addition to the jurisdiction conferred by this section, this court has jurisdiction of all cases pending in the late court for the correction of errors on the first Monday of July, 1847, and on that day transferred to this court by the constitution, and now remaining undetermined. (Laws of 1847, p. 322, s. 12.) See Section 460 of this code, and note.

3. Wording of section, how construed.

By this section, the court has authority to review only actual determinations of the inferior court, that is, questions upon which the inferior court has actually passed, per Allen J., Raynor v. Clark, 3 Code Rep., 230; 7 Barb. S. C. R., 581; and only determinations "hereafter made," which means after the code took effect, per Bronson, J., in Rice v. Floyd, 1 Code Rep., 112; 3 Pr. R. 366.

In Gridley v. Daggett (1 Code Rep. N. S., 386; 6 Pr. R., 288) a decision had been made at special term, and appealed to the general term. At the general term no hearing of the appeal took place, but a judgment was entered under a stipulation and with a view to an appeal to this court. An appeal was had, and both parties asked to have it heard upon the merits, but it was held that the court had no discretion. The statute is imperative-there must be an "actual determination" of the court below; and the appeal was dismissed for want of such actual determination as the code requires. The "special proceedings" mentioned in subdivision 3 of this section, are not the "provisional remedies" provided for by Title VII. of Part II. of the Code. Genin v. Tompkins, 1 Code Rep. N. S., 415.

The words in this section, "brought there from another court," have been held to include suits pending in the late court of chancery on the first Monday of July, 1847, and transferred to the supreme court by force of the constitution, (ART. xiv. s. 5.), and judiciary act (Laws of 1847, p. 322, s. 12), where the decree was made after the code took effect; and that suits transferred might well be considered as suits brought. Farm. Loan & Trust Co. v. Carroll, 4 Pr. R., 211, 212; 2 Code R., 138. 2 Coms., 566.

4. When the appeal is or is not governed by the code.

The right to review on appeal to the court of appeals a final order, judgment, or decree, made prior to July, 1848, as also the time and manner of prosecuting the appeal, depend on the old law. Mayor of New York v. Schermerhorn, 1 Code Rep., 109. 1 Coms., 423.

In delivering the decision in the case last cited, Bronson, J., says: "On the construction which I have given to these statutes (the code and supplementary act), when the matter was decided before the 1st of July, the right to a review, the time within which the proceeding must be commenced, and the form of prosecuting it from beginning to end, all depend on the old law. The code says nothing on the subject. But when the matter is decided after the 1st of July, whether the suit was commenced before or after that day, the right to appeal, the time within which the appeal must be taken, and the mode of procedure, all depend upon the code. A differ

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