3. Q. What has been said of reports of commissioners of appraisal for lands taken for railroads and plank roads?

A. In the case of Rochester and Genesee Valley R. R. Co. agt. Beckwith, 10 How., 170, General Term, September, 1854, WELLES, J., said, after reciting the three first sections of the Code: "It seems to me clear, therefore, that the orders appealed from in these cases (appeals from orders of the court at special term, confirming the report of commissioners of appraisal, &c.) were made in special proceedings, and are appealable under the act cited, of the last session." (Laws of 1854, ch. 270.)

In V. Y. Central R. R. Co. agt. Marvin, 1 Kern., 277, June Term, 1854, the Court, PARKER, J., say: "Inasmuch as all remedies in courts of justice are by the Code (§ 1) divided into actions and special proceedings, the application to the supreme court for the appointment of commissioners of appraisal for lands taken for a railroad, and the appraisal, report and confirmation, must fall within the latter subdivision of remedies. In Ex parte Ransom, 3 Code R., 148, it was held that the proceeding to assess damages on laying out of plank roads, under chapter 210 of the laws of 1847, is a special proceeding as defined by the Code, and this proceeding is of the same character."

4. Q. What has been said of an application for the confirmation of a report of commis sioners for opening streets, &c., in the city of New York?

A. In the Matter of the Extension of the Bowery, 12 How., 99, General Term, February, 1856, HARRIS. J., said: "I do not think it very clear that the application to the court for a confirmation of the report of the commissioners, for which the statute thus provides, is a special proceeding, within the meaning of that term, as it is defined in the third section of the Code, which declares that every other remedy, except such as are obtained by an action, is a special proceeding. These remedies, I suppose, are such as are incident to the powers of a court of general jurisdiction, such as mandamus, prohibition, habeas corpus, and the like. I do not think that the proceeding to obtain the confirmation of the report of commissioners, under the statute referred to, is, in any proper sense of the term, a remedy. But, conceding this point, and that the application for the order of confirmation is a special proceeding, I do not think that the decision of the court is subject to review," &c.

In the Matter of Canal and Walker Streets, 2 Kern., 409, March Term, 1855, the Court, GARDINER, J., say: "The validity of the appeal in this case depends upon the act of 1854, in relation to special proceedings' (Lars 1854, p. 592). Independently of that statute, the general term acquired no jurisdiction of the proceedings; and according to the principle settled in Gracie agt. Freeland (1 Comst., 228), there was consequently nothing for review in this court. By the first section of the act above mentioned, an appeal may be taken to the general term of the supreme court, from any judgment, order or final determination made at the special term of said court, in any special proceeding therein.'" The court held, that under the act of 1854 the decision of the general term in these street cases, as special proceedings, was made final and conclusive, and no appeal therein lay to the court of appeals.

5. Q. What has been said of the appointment of a general guardian for an infant?

A. In the Matter of Hannah M. Pierce, 12 How., 532, Special Term, May, 1856, E DARWIN SMITH, J., said, on an application to remove a quardian appointed by the sur rogate and to appoint another in his place: "This is an original application to this court, and comes within the description of a special proceeding, under section 3 of the Code. But the legislature has made no provision for costs in special proceedings as such, and I can, therefore, only give motion costs."

6. Q. What has been said of the appointment of referees to determine appeals from orders of commissioners of highways?

A. In the case of People agt. Flake, 14 How., 529, Special Term, August, 1857, BIRDSEYE, J., said: "Clearly, they (the referees) take the place of the judges of the court of common pleas, whose functions they exercise, and in whose stead they are substituted. They become a court of inferior jurisdiction, within the meaning of section 318 of the Code. The proceeding before them is also a special proceeding, under section 3 of the Code. (See Haviland agt. White, 7 How., 157.)"

In The People agt. The Commissioners of Highways of Schodack, 27 How., 158, General Term, September, 1863, MILLER, J., held: That a proceeding upon a common law certiorari, to review proceedings of commissioners of highways, is a special proceeding under section 3 of the Code.

7. Q. What has been said of proceedings against habitual drunkards?

A. In the Matter of Henry Smith, 16 How., 569, General Term, November, 1858, on an appeal from the county court in such proceedings, BALCOM, J., said: "These proceedings, when in the county court, were not an action (Code, §§ 2, 3), although when brought into this court for review they are to be deemed an action at issue on a question of law for all the purposes of costs (Čode, § 318). The Code only allows appeals to this court from judgments of county courts (§ 314), and from orders made by county judges

in actions (§ 349). There is no provision in it for appeals to this court from orders made by county courts or county judges in special proceedings."

8. Q. What has been said of an application to be admitted an attorney and counsellor at

law?

A. The answer to this question will be found under section 1, Q. 1.

9. Q. What has been said of proceedings to foreclose a mortgage by advertisement?

A. The answer to this question will be found under section 2, Q. 11.

10. Q. What has been said of summary proceedings between landlord and tenant?

A. The answer to this question will be found under section 2, Q. 16.

11. Q. What has been decided on an application under the statute to compel a specific performance by infant heirs of a contract for the sale of land made by the ancestor?

A. In Hyatt agt. Seeley, 1 Kern., 55, June Term, 1854, the Court, SELDEN, J., say: "I see no reason to doubt that this is to be regarded as a special proceeding. An action is defined by the Code to be an ordinary proceeding in a court of justice (§ 2). This definition can hardly be held to embrace à proceeding which is purely statutory and new, and which is conducted in no respect according to the forms of the common law. There is neither process or pleadings or issue joined, as in ordinary actions. The whole proceeding is peculiar and unknown to our courts, except by special statutory provision, and is therefore aptly described by the term special proceeding."

12. Q. What has been decided on an application to vacate a judgment by confession for a defective statement?

A. In Belknap agt. Waters, 1 Kern., 478, September Term, 1854, the Court, JOHNSON, J., say: The application made by Carpenter to the supreme court was not an action, because, although it might be difficult to affirm that it is not an ordinary proceeding in a court of justice. yet, looking at all the provisions of the Code tonching civil actions, it appears that by ordinary proceedings' it was intended to designate those ordinary proceedings which are instituted by summons and complaint, when they are of a civil nature. If, therefore, his application was a remedy at all, it was a special proceeding." 13. Q. What has been decided as to a writ of certiorari?

A. In People agt. Stilwell, 19 N. Y. R., 532, June Term, 1859, the Court, COMSTOCK, .., say: "The writ of certiorari I suppose to be a special proceeding, according to the classification of remedies contained in the Code of Procedure (§ 3). The final order in such proceedings can be appealed to this court, where it affects, a substantial right" (§ 11, sub. 3).

14. Q. What has been said of discovery of books and papers?

A. In Follett agt. Weed, 3 How., 303, Special Term, September, 1848, SILL, J., said: "It is suggested that the section last cited (§ 343 of the Code of 1848) takes away the power to order sworn copies of papers to be delivered, on the ground that it is a discovery under oath. That section abolishes actions to obtain discovery. This is not an action, and this restriction does not apply."

15. Q. What has been decided in a proceeding to enforce a judgment by attachment, as for a contempt?

A. In Gray agt. Cook, 15 Abb., 308, N. Y. Superior Court, Special Term, 1863, BosWORTH, J., held: That a proceeding to enforce a judgment by attachment, as for contempt, is a special proceeding, and not a civil action.

In Holstein agt. Rice, 24 How., 135, General Term, May, 1862, it was decided, HOGEBOOM, J., that proceedings on an attachment for contempt against the defendant, in supplementary proceedings, is a special proceeding under the Revised Statutes, whether it is considered such under the Code or not.

16. Q. What has been decided in reference to a proceeding to vacate an assessment for fraud, &c., under the act of 1858?

A. In the Matter of Dodd, 27 N. Y. R., 629, September Term, 1863, the Court, DENIO, Ch. J., held, that the act of 1854, (ch, 270), providing for appeals in special proceedings, had no application to proceedings under the act of 1858. The application under the act of 1858 was not a special proceeding, in the sense of the Code. In that system, remedies in courts of justice are defined and divided into classes, and everything which is not an ordinary action is a special proceeding (§§ 1, 2, 3). To be a special proceeding, in the sense of the Code, there must be a litigation in a court of justice. The legislature is perfectly competent to invoke the aid of a judicial officer for the regulation of an administrative proceeding, without organizing a special proceeding in a court of justice.

In Pinckney's Case, 18 Abb., 356, General Term, February, 1865, INGRAHAM, J., it was decided that these proceedings, under the act of 1858, to vacate assessments, &c., when ⚫ taken before a justice at special term, were "special proceedings," under the act of 1854,

and an order therein by the special term was appealable, without expressing any opinion as to the right of appeal from an order made before a justice out of court, as was the case in the Matter of Dodd, supra.

In Matter of Thayer, 30 How., 276, General Term, January, 1866, LOTT, J., it was decided that the order of a justice of the supreme court in special term, in proceedings under chapter 338 of the laws of 1858, to vacate assessments for local improvements, for fraud therein is final and conclusive, and not subject to review on appeal." (Following the case of Matter of Dodd, 29 N. Y. R. 629, which overrules Pinckney Case, 18 Abb. p. 356.) 17. Q. How are errors to be corrected in special proceedings, wherein. the court or officer are required to ascertain particular facts?

In Porter agt. Purdy, 29 N. Y. R., 106, March Term, 1864, MULLIN, J., it was decided that, when in special proceedings in courts or before officers of limited jurisdiction, they are required to ascertain a particular fact, or to appoint persons to act in such proceedings, having particular qualifications or occupying some peculiar relation to the parties or the subject matter, such acts, when done, are in the nature of adjudications, which, if erroneous, must be corrected by a direct proceeding for that purpose; and if not so corrected, the subsequent proceedings which rest upon them are not affected, however erroneous such adjudications may be.

What is the result of the investigations and decisions under this section?

1. Proceedings supplementary to execution, are special proceedings under this section. 2. Summary proceedings under the statutute relating to indigent or poor persons, are special proceedings under this section.

3. Proceedings under the statute for the taking and oppraisal of lands for railroads and plank roads, are special proceedings under this section.

4. Proceedings to obtain confirmation of the report of commissioners under the statute for opening streets, &c., in the city of New York, are special proceedings under this sectic... 5. The appointment and removal by the court of guardians for infants, are special proceedings under this section.

6. No provision for costs in special proceedings, as such, is made by the Code; but provision for them is made by a special act passed in April, 1854.

7. Proceedings before referees appointed under the statute to determine appeals from orders of commissioners of highways, are special proceedings under this section.

8. Proceedings under the statute against habitual drunkards, are special proceedings

under this section.

9. An application for admission as an attorney and counsellor at law, ceeding under this section.

a special pro

10. Proceedings under the statute to foreclose mortgages by advertisement, are special proceedings under this section.

11. Summary proceedings under the statute, between landlord and tenant, are special proceedings.

12. An application under the statute to compel a specific performance by infant heirs of

a contract for the sale of land made by the ancestor, is a special proceeding.

13. An application to vacate a judgment by confession, for a defective statement, is a special proceeding.

14. The writ of certiorari, is a special proceeding.

15. Proceedings to obtain discovery of books and papers, are special proceedings.

16. The submission of a controversy, under section 372 of the Code, is a special proceeding. (See § 2.)

17. The remedies under this section are such as are incident to the powers of a court of general jurisdiction, such as mandamus, prohibition, habeas corpus, and the like.

18. A proceeding to enforce a judgment by attachment and for a contempt, is a special proceeding.

19. A proceeding to vacate an assessment for fraud, &c., under the act of 1858, is not a special proceeding in the sense of the Code.

$$ 4-6.] DIVISION OF ACTIONS, CIVIL AND CRIMINAL.

13

20. A special proceeding, by which trustees of a village, under their charter, appoint assessors for the purpose of assessing property taken for a sewer, must be reviewed, if erroneous, by a certiorari or other direct proceeding, but cannot be reviewed collaterally in an action of trespass for taking property by virtue of such assessment.

4. Division of actions.

Actions are of two kinds :

1. Civil.

2. Criminal.

1. Question. What has been decided in reference to partition?

Anver. The answer to this question will be found under section 2, Q. 3 and 4.

2. Q. Are the civil actions mentioned in this section, limited?

A. The answer to this question will be found under section 2, Q. 4.

5. 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.

1 Question. How did this section read in 1848?

Answer. As follows:

$5. [1848.] A criminal action is prosecuted by the state, as a party, against a person charged with a public offense, for the punishment thereof.

2. Q. When was it changed?

4. In 1849, it was changed as it now stands.

6. Civil action.

Every other is a civil action.

1. Question. What is the difference between the definition of an "action" under section 2, and of a "civil action" under this section?

Answer. Probably none, as all actions by section 4 are divided into two kinds, civil and criminal, and section 5 declares what is a "criminal action," of course all others are civil actions. Consequently reference is made to section 2 for illustrations and definitions of "civil actions."

2. Q. What is said of "equity cases?"

A. In Giles agt Lyon, 4 Comst., 600, April Term, 1851, it was held by the Court, GARDINER, J., that an action commenced under the Code of Procedure is not an "equity case," although the subject of the suit and the relief demanded were matters of exclusive equity cognizance under the former system of pleading and practice. That the 47th section of the amended Code of 1849, authorizing the supreme court to transfer "equity cases" to the superior court of the city of New York, applied only to suits in equity commenced under the previous system, and did not authorize the transfer of an action under the Code, although such action was strictly equitable according to former dis tinctions. The Code of Procedure has abolished all distinction between legal and equitable remedies, and blended them into one system, combining or professing to combine the principles peculiar to each.

3. Q. What is said of proceedings for partition by petition under the statute?

A. In Row agt. Row, 4 How., 133, Special Term, October, 1849, BARCULO, J., stated that "The legal action of the Code is expressly substituted for suits in equity by section 69 (old Code). As under the former system proceedings for partition could be commenced either by bill or petition; and as the bill has been abolished and the legal action substituted, it follows that the only remedies now remaining are the legal action of the Code, and the old petition."

1, There is no difference between a legal action and an "equity case" under the Code; both are combined into a "civil action."

§ 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.

8. 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 first 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.

1. Question. How did this section read in 1848?

8. [1848.] This act is divided into two parts.

The first relates to the courts of justice and their jurisdic

tion.

The second relates to civil actions commenced in the courts of this state, after this act shall take effect, and is distributed into twelve titles. The first four relate to actions in all the courts in the state, and the others, to actions in the supreme