New York city. Matter of Canal and Walker streets, 12 N. Y. (2 Kern.) 406, (409); Pryor's Appeal, 5 Abb. 272. Whether such a proceeding is a special one was considered, but not decided, in matter of Bowery Extension, 12 How. 97; S. C. 2 Abb. 368. d. A proceeding to assess damages for lands taken for a plankroad underthe act of 1847, ch. 210, § 12, is a special proceeding. Matter of Fort Plain and Cooperstown Plankroad Co. 3 Code R. 148. e. Laying out highways.-Proceedings on appeal from an order laying out a highway under the statute. People ex rel. Disosway v. Flake, 14 How. 527, (529). f. Contempt.-A proceeding as for a contempt for the punishment of a party disobeying an order made in proceedings supplementary to execution. Holstein v. Rice, 24 How. 135, (139); S. C. 15 Abb. 307, (311); Gray v. Cook, ib. 308, note. See Forbes v. Willard, 54 Barb. 520; S. C. 37 How. 193. g. Street assessments.-A certiorari to review proceedings in street assessment cases. People ex rel. Vanderbilt v. Stilwell, 19 N. Y. (5 Smith), 531, (532). h. Mandamus.-A proceeding by mandamus is a special proceeding. People ex rel. Merriam v. Schoonmaker, 19 Barb. 658. i. Habitual drunkards.-So of a proceeding in the county court against an habitual drunkard. Matter of Smith, 16 How. 567, (569). j. Highway appeals.-So of proceedings before referees on an appeal from an order made by commissioners of highways as to laying out a highway. People ex rel. Disosway v. Flake, 14 How. 527, (529). This case is questioned in People ex rel. Harvey v. Heath, 20 How. 304; but the latter case was itself disapproved in People ex rel. Clute v. Boardman, 4 Keyes, 59, (67). k. Removal of guardian.-So of a pe tition to the supreme court for the removal of a guardian appointed by a surrogate Matter of Pierce, 12 How. 532, (535). 1. Summary proceedings.-So of proceeding by a landlord against a tenant for the recovery of the possession of demised premises. People ex rel. Clute v. Boardman, 4 Keyes, 59, (67). m. Highway certiorari.—So of a certi- · orari to reverse proceedings of commissioners of highways in relation to an alleged encroachment on a highway. People ex rel. Muller v. Commissioners of Highways of Schodack, 27 How. 158, (160). n. Support of poor relation.-So of a proceeding in a court of sessions to compel a party to support an indigent relation. Haviland v. White, 7 How, 154, (157); approved in People ex rel. Harvey v. Heath, 20 How. 307; People ex rel. Muller v. Commissioners of Highways of Schodack, 27 How. 159. II. CASES HELD NOT TO BE SPECIAL PROCEEDINGS. a. Street assessments.-A proceeding to vacate an assessment for a local improvement in the streets of New York city, is not a special proceeding. Matter of Dodd, 27 N. Y. (13 Smith), 629, (633). "To be a special proceeding in the sense of the Code there must be a litigation in a court of justice." Ib. This view is not concurred in in People ex rel. Clute v. Boardman, 4 Keyes, 59, (67); People ex rel. Muller v. Commissioners of Highways of Schodack, 27 How. 158, (160). b. Mandamus.-So of a proceeding by mandamus. People ex rel. Lumley v. Lewis, 28 How. 159, (172); Aff'd, id. 470, in Ct. of App. c. Supplementary proceedings.So of proceedings supplementary to execution Dresser v. Van Pelt, 6 Duer, 688; S. C. 15 How. 19, (23). d. Removal of policeman.-So of proceedings by the Board of Police of the Metropolitan Police District for the removal of a patrolman from his office. People ex rel. Cook v. Board of Police of Metropolitan Police Dis trict, &c. 39 N. Y. (12 Tiff.), 506, (521); Aff'g S. C. 40 Barb. 626. § 4. [4.] Division of actions into civil and criminal. Actions are of two kinds: 1. Civil. 2. Criminal. § 5. [5.] (Am'd 1849.) Definition of a criminal action. A criminal action is prosecuted by the people of the State, as a party, against a person charged with a public offense, for the punishment thereof. § 6. [6.] Definition of a civil action. Every other is a civil action. § 7. [7.] Civil and criminal remedies not merged in each other. 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. Civil remedies are not merged in felonies, nor are they suspended until the conviction of the offender. Gordon v. Hostetter, 37 N. Y. (10 Tiff.), 99, (105); 4 Abb. N. S. 263, (270); 4 Trans. App. 375, (381). 8. [8.] (Am'd 1849.) Subjects embraced in this 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 first day of July, 1848, except when otherwise provided therein, and is distributed into fifteen titles. The first four (§§ 69 to 126, both inclusive), 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 mayor's courts of cities, and in the recorder's 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. b. Costs. An appeal from a decree in chancery brought before the Code took effect, but decided after that time, is governed by the old law, and the costs must be taxed under it. Truscutt v. King, 4 How. 173. Costs in suits pending on the first day of appeals must be taxed under the old fee bill Where a suit was pending and was decided This section does not authorize the court of appeals to grant an extra allowance of costs. Wolfe v. Van Nostrand, 2 N. Y. (2 Comst.) 570; S. C. 4 How. 208; 2 Code R. 130. The costs given by the Code on appeals to the court of appeals are as applicable to special proceedings as to civil actions. People ex rel. Davis v. Sturtevant, 9 How. 304; S. C. 3 Duer, 616; 12 N. Y. Leg. Obs. 86. fore July 1st, 1848, when the verdict was set aside and a referee's report made in favor of the defendant in 1852, the executors of the plaintiff were held not liable for costs personally, nor in their representative capacity. Theriot v. Prince, 12 How. 451. In a suit pending July 1st, 1848, where the plaintiff recovers but $50; after that time he cannot recover costs, as his rights are governed by the old law. Rich v. Husson, 1 Duer, 617; S. C. 11 N. Y. Leg. Obs. 119. c. Writ of error.-A determination of the supreme court in mandamus or prohibition must be brought before the court of appeals by writ of error, as before the Code, and not by appeal. Becker v. People ex rel. Cook, 18 N. Y. (4 Smith), 487. This rule has been changed by statute (Laws 1859, ch. 174), and an appeal is now the proper mode of review. People ex rel. Bender v. Church, 20 N. Y. (6 Smith), 529. d. Appeals.-Where the decree or order appealed from was made before July 1st, 1848, the right of appeal and the time within which it must be brought are governed by the old law; but where the decision was made after that day, whether in a suit then pending or not, the practice under the Code prevails. Mayor, etc. of New York v. Schermerhorn, 1 N. Y. (1 Comst.), 423; S. C. 1 Code R. 109. In a suit begun before July 1st, 1848, a bill of exceptions taken at the circuit must be argued as under the old practice, and is not brought up by an appeal. Clarke v. Crandall, 4 How. 127; S. C. 2 Code R. 70. In an action of tort, which was commenced There is no longer an appeal from the disand resulted in a verdict for the plaintiff be-trict courts of New York city to the superior court thereof. Hawkins v. Mayor, etc. of New York, 5 Abb. 344; Wood v. Kelly, 2 Hilt. 334; Day v. Swackhammer, 5 Abb. 345, note. -- e. Executions. Executions issued on judgments rendered in suits pending July 1st, 1848, are governed by the law in force before that time. Merritt v. Wing, 4 How. 14; S. C. 2 Code R. 20. Since the amendment of the Code in 1849, executions on such judgments are governed by the Code. Catskill Bank v. Sanford, 4 How. 101. f. Marine court of New York.This section does not apply § 179, as to arrests in civil actions to the marine court. People ex rel. Corlis v. Smith, 9 How. 464; S. C. 12 N. Y. Leg. Obs. 285; Livsey v. Landers, 12 How. 25; S. C. 3 Abb. 176; sub nom. Livesey v. Sanders; Schadle v. Chase, 16 How. 413. Nor does it govern the form of the summons to be issued out of the marine court. Williams v. Price, 2 Sandf. 229. Nor does it relate to the pleadings in those courts. Williams v. Price, 2 Sandf. 229; Cornell v. Smith, 2 Sandf, 290. g. Justices' courts.-This section does not apply the rules of evidence to justices' courts. Pelham v. Bryant, 10 How. 60, (64). Nor does it authorize justices' courts to strike out the names of parties to actions. Perkins v. Richmond, 17 How. 309, (311); Webster v. Hopkins, 11 How. 140. Nor does it authorize a justice to restore a name once struck out of process by him. Gates v. Ward, 17 Barb. 424, (427). This section does not apply to justices' courts the provisions of § 148 of the Code, as to waiver of objection on account of defect of parties. Rice v. Hollenbeck, 19 Barb. 664, (666). Nor does it authorize a justice to amend a summons by correcting the name of the defendant when he does not appear after service of the summons upon him. Hoffman v. Fish, 18 Abb. 76. Nor does it authorize a justice to order judgment against a plaintiff for a set-off or counterclaim where he fails to appear on the adjourned day. Norris v. Bleakley, 3 Abb. 108; S. C. 1 Hilt. 90. This section does not apply the provisions of the Code as to arrests in civil actions to courts held by justices of the peace. Keeler v. Clark, 18 Abb. 154, (156). But it does authorize a justice to appoint a guardian or next friend. Walker v. Swayzee, 3 Abb. 136. This section, as well as all others in the Code, applies to all cases of recognizances forfeited in any court of general sessions or of oyer and terminer. Laws 1855, ch. 202, §§ 1 and 2. h. Statute of limitations.-Title II of the Code does not extend to cases where the right of action had accrued when that title became a law, but leaves them to be governed by the law then in force. Van Alen v. Feltz, 1 Keyes, 332; Rev'g S. C. 32 Barb. 139; 9 Abb. 277. PART I. OF THE COURTS OF JUSTICE AND THEIR JURISDICTION. TITLE I. OF THE COURTS IN GENERAL. II. OF THE COURT OF APPEALS. III. OF THE SUPREME COURT, CIRCUIT COUrts, and CourTS OF OYER AND TERMINER. V. OF THE SUPERIOR COURT AND COURT OF COMMON PLEAS IN THE CITY OF NEW VI. OF THE COURTS OF JUSTICES OF THE PEACE. VII. OF Justices' and OTHER INFERIOR COURTS IN CITIES. TITLE I. Of the courts in general. SECTION 9. The several courts of this State. 10. Their jurisdiction generally. 99. [9.] (Am'd 1849.) The several courts of this State: 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' (district) courts in the city of New York. 17. The justices' courts of cities. 18. The police courts. This enumeration is not complete, as it court and the marine court of the city of Bufomits the city court of Brooklyn, the superior | falo. See Laws 1870, chaps. 470 and 313. 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. I. GENERAL. 192, (200); Aff'g S. C. 35 How. 119. a. Same subject matter in different | ty v. Libby, 2 Daly, 418; S. C. 5 Abb. N. S. courts.-If two actions between the same parties and upon the same subject matter are brought in two different courts, the court which first acquires jurisdiction should dispose of the whole controversy. McCarthy v. Peake, 9 Abb. 164; S. C. 18 How. 138. b. Surrogates' courts.-The jurisdiction of surrogates' courts in proceedings to compel executors, administrators or collectors to account, is concurrent with that of courts having the powers of courts of equity. Chris II. STATE COURTS a. Foreign corporations.-When, by its officers, a foreign corporation comes within this State, it becomes subject to the process of the courts. People v. Central R. R. of New | Jersey, 48 Barb. 478, (502); S. C. 33 How. 407; see Watson v. Cabot Bank, 5 Sandf. 423; S. C. Aff'd in Ct. App. 4 Duer, 606, note. A citizen of this State can maintain an action here against a foreign corporation, to restrain illegal acts of directors, etc., when they are personally within the jurisdiction of the court. Fisk v. Chicago, Rock Island and Pacific R. R. Co. 4 Abb. N. S. 378; S. C. 36 How. 20; 53 Barb. 513. b. U. S. soldiers.-The authority of the State courts to require the production of a prisoner on habeas corpus, although he belongs to the United States army, does not cease until the commitment has been made by a judge of the United States courts. Matter of Barrett, 42 Barb. 479, (481); S. C. 25 How. 380. State courts have power to discharge persons enlisted in the United States army, on habeas corpus. Matter of Dabb, 12 Abb. 113, (116); S. C. 21 How. 68; Matter of Beswick, 25 How, 149, (156); Matter of Webb, 24 How. 247, (250); Matter of Carlton, 7 Cow. 471. In a recent case the United States district court settled the rule, conclusively, that State courts and State judges have full authority, on habeas corpus, to examine into the cause of the detention of one claimed as a deserter from the United States service, and to discharge him, if illegally held. Matter of Reynolds, 6 Park, 276. The contrary doctrine has been held in Matter of Rielly, 2 Abb. N. S. 334, (339); Matter of Phelan, 9 Abb. 286, (288); Matter of Hopson, 40 Barb. 34, (50); see also, Matter of Husted, 1 Johns. Cas. 136; U. S. v. Wyngall, 5 Hill, 16; and Matter of Ferguson, 9 Johns. 239. c. City court of Brooklyn.-In the city court of Brooklyn term fees should be taxed as in the supreme court, because the laws regulating the practice of the supreme court apply to and are binding upon this court. Bird v. City of Brooklyn, 2 Abb. N. S. 132, (133). See, also, Laws 1849, ch. 125. d. Proceedings are void when the court has no jurisdiction. Supervisors of Monroe Co. v. Budlong, 51 Barb. 493. (515). HAVE JURISDICTION. | How. 242. See also, contra, Mott v. Cod- And may be maintained against a naval of- State courts have jurisdiction of an action for an assault committed in the Brooklyn navy yard. Armstrong v. Foote, 11 Abb. 384, (387), overruling 19 How. 237. Of an action for a trespass at sea. Percival v. Hickey, 18 Johns. 256, (294); Gardner v. Thomas, 14 Johns. 134. Courts of this State have jurisdiction of personal torts, even when committed abroad by non-residents. Dewitt v. Buchanan, 54 Barb. 31, (34), and cases there cited. An action may be maintained for slander, though the acts and words transpired in another State. Hull v. Vreeland, 18 Abb. 182, (185); 42 Barb. 543; Lister v. Wright, 2 Hill, 320. Also for conspiracy by residents of another d. Lands out of State.-Courts will Ward In cases of fraud, trust, or contract, jurisdiction will be sustained wherever the defendant may be found, even though lands out of the State may be affected. D'Ivernois v. Leavitt, 23 Barb, 63, (80); De Klyn v. Watkins, 3 Sandf. Ch. 185, (188). Courts of this State may compel the conveyance of lands situated in another State. Gardner v. Ogden, 22 N. Y. (8 Smith), 327, (333); Newton v. Bronson, 13 N. Y. (3 Kern.) 587; Bailey v. Ryder, 10 N. Y. (6 Seld.) 363, (370); Fenner v. Sanborn, 37 Barb. 610. c. Torts outside of territorial limits.-State courts have jurisdiction of actions for injuries to property, although committed out of the State, and the parties are resident abroad, if the defendant is served with process here. Latourette v. Clark, 45 Barb. 327, (331). Same case erroneously reported in 30 | Rensselaer, 1 Johns. 93. e. Foreign contracts.-An action may be maintained on a foreign contract, though not stamped according to the law of the country where made. Skinner v. Tinker, 34 Barb. 333, (335), which approves Ludlow v. Van |