THE CODE OF CIVIL PROCEDURE.

REVISERS' PRELIMINARY NOTE.

The Commissioners of Code Revision submit herewith a proposed Code of Civil Procedure which is the last of the bills relating to code revision.

Under chapter 1036 of the Laws of 1895 the Commissioners of Statutory Revision were appointed Commissioners of Code Revision. For the purpose of ascertaining the opinion of the lawyers of the state concerning code revision, the Commissioners. under date of July 25th, 1895, sent a circular letter to nearly ten thousand lawyers requesting an expression of their views on this subject. The responses to this circular showed a very decided preponderance of opinion in favor of a general revision of the

code.

The Commissioners presented to the Legislature of 1896 a preliminary report, embodying an historical statement of the development of procedure, and a plan of code revision, by which it was proposed to divide the code into five parts; the first part to contain provisions relating to the organization and jurisdiction of courts, and various miscellaneous matters not strictly procedure; part two to embrace nearly all of chapters five to thirteen inclusive of the Code of Civil Procedure relating to practive generally in courts of record; part three to include miscellaneous actions and proceedings; part four, procedure in surrogates' courts, and part five, practice in justices courts.

We have given the subject of code revision all the attention. which we deemed practicable since the report to the Legislature of 1896, and have carried it on in connection with a general re

vision of the statutes. It seemed to us that a logical development of the subject of statutory revision should conclude with code revision. In our investigation of the subject preliminary to the report of 1896, we found about one hundred statutes relating more or less directly to procedure. Some of these can properly be included in a Code of Civil Procedure, and perhaps should be so included, if such a code is to embrace all the practice. Further study of the subject has convinced us that it is not practicable to embrace in one code all the law relating to procedure, but that it will be found more convenient to confine the Code of Civil Procedure to practice strictly as such, eliminating many details relating indirectly to the action or proceeding, but which are not necessarily involved in practice during the progress of the case. Besides, many actions and proceedings are worked out by a special practice, and come only incidentally within procedure as prescribed for ordinary actions. We have concluded that many of these miscellaneous matters can very properly be embraced in separate general laws, and in these cases the general code will apply wherever necessary in the course of the proceeding.

The general revision of the statutes is substantially completed. Forty-nine general laws have been passed, and only a few remain for further consideration by the Legislature. This brings us to the revision of the code. The Commissioners have modified the plan submitted in their report to the Legislature of 1896, to the extent that instead of making a code of five parts, it is now proposed to divide the code into several general laws or codes, and include in these general laws or codes all outside statutes relating to procedure. We submitted to the Legislature of 1898 a bill embodying a proposed "Judiciary Law," embracing the provisions in the early part of the code, relating to organization of courts, functions of various officers, and incidental proceedings not strictly procedure.

As a part of the new plan we also submitted in 1899 a proposed "Justices Code," intended to embody procedure in the inferior courts. We have also prepared, for submission to the Legisla ture of 1900 a proposed "Surrogates Code," intended to embody

procedure in surrogates' courts. This leaves, according to our plan, the present bill, intended to include not only procedure in courts of record, relating primarily to ordinary actions and proceedings in the supreme and county courts, but also procedure on appeals to the Court of Appeals, and the procedure in certain local courts which are by law under the Code of Civil Procedure.

The growth of the code in recent years, and the accretions incident to our expanding judicial system and the scope of subjects of litigation, together with the apparent desire to embody in one statute all subjects relating to procedure, present to the courts, the legal profession, and the people generally a very serious problem, namely, whether it is after all practicable or desirable to attempt to embody in one statute so many subjects, although apparently cognate, but which are nevertheless in many respects heterogeneous; or whether it would not tend to a better and more convenient administration of justice to include in the Code of Procedure that practice only which must be applied during the progress of an ordinary action, or in certain special actions, and including incidental and unusual procedure in other statutes. Many branches of procedure now included in the code have only an occasional use and application; indeed some of these subjects are used so infrequently by the majority of lawyers that it is hardly worth while to keep them combined with ordinary code practice.

In our separation of the code into several independent statutes, we believe we represent a very distinct and positive sentiment among lawyers who have experienced inconvenience in the use of a code containing so much miscellaneous and unusual law relating to procedure; and the cordial expressions of approval of the bills already prepared, which we have received from judges and lawyers, warrant the conclusion that a reclassification and rearrangement of the subjects incident to procedure are desirable, and now especially opportune in connection with the completion of a scheme of general revision of our statute law.

The Judiciary Law has already been before the profession two years, and has been carefully examined by many lawyers and

judges. The Justices Code was submitted in 1899, and distributed quite generally through the State to persons interested in procedure in inferior courts.

The Surrogates Code, including procedure in a distinct branch of the law, and procedure which we think is inherently different from that in ordinary courts in actions between individuals, presents a body of practice which may fairly stand by itself, and which should, so far as practicable, be independent, so that it will not be necessary to resort to other codes or statutes on procedure in matters relative to the settlement of decedents' estates.

We have also concluded to take out of the code the Condemnation Law added in 1890. We have rewritten this article, but without intending to change the practice. The frequent reference in statutes to the Condemnation Law by name leads us to think that it may be more convenient to have this law stated separately. Besides, it is not connected with general practice, is only resorted to in special cases, and applies to such a variety of subjects outside the general scheme of procedure, that we think it may very properly be eliminated from the code.

We have also concluded to take out of the code the subject of insolvent debtors, now embracing several articles, and make it an independent statute, combining with it the statute relative to assignments for the benefit of creditors. That part of this subject now in the code is seldom used, but it is occasionally used, and of course the law should be retained. We think it will be more convenient and logical to combine all the law relating to insolvent debtors in a statute by itself. The Assignment Law will probably be substantially dormant, while the National Bankruptcy Law continues in force. The Insolvent Debtors Law, as prepared by us, contains nearly one hundred and fifty sections. When the Lien Law was passed in 1897, it was thought that the practice relating to foreclosure of mechanics' liens and liens on vessels should be included in the Code of Civil Procedure. A bill was accordingly passed adding two articles to the Code. The plan of code separation proposed by us makes it desirable, we think, to include this practice in the Lien Law itself. Two reasons