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 the cities of Albany, Hudson, Troy and Rochester, and in the recorders' courts in the cities of Buffalo and Utica; 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.

2. Q. When was it changed?

A. In 1849, when it was amended as it now stands.

Questions.

3. Q. What construction was given to the original section (1848)?

4. Q. What references have been made to this section in cases of appeal to the court of appeals!

5. Q. What references have been made to this section with regard to issuing executions ? 6. Q. What has been decided in reference to costs in suits pending when the Code took effect!

7. Q. What has been decided respecting the application of this section to marine and jus

tices courts.

8. Q. How has this section been applied to the superior court of New York City?

9. Q. What reference has been made to this section on appeals from county court decisions in case of habitual drunkards?

10. Q. What decision has been made respecting appeal from judgment of county court, in summary proceedings?

11. Q. What reference has been made to the city court of Brooklyn ?

12. Q. In what respects have the provisions of the Code been extended?

13. Q. Has the superior court of the city of New York jurisdiction of appeals from the district (justices') courts of that city?

3. Q. What construction was given to the original section (1848) ?

4. In Diefendorf agt. Elwood, 3 Hor., 285, Special Term, August, 1848, PAIGE, J., said: "The question presented by this motion is, was the suit commenced before the Code took effect." (The declaration was made out and filed on the 29th of May, 1848, and copies of the same were handed to the deputy sheriff on the 1st day of June, 1848, with the usual notice to plead indorsed, to be served on the defendants; but they were not actually served until the 15th day of July, 1848). "The Code of Procedure relates to civil actions commenced after the act took effect (§ 8). It also provides that civil actions in courts of record shall be commenced by the service of a summons; and requires

that a copy of the complaint shall be served with the summons.

And it declares that all

the forms of pleading heretofore existing, are abolished. The Revised Statutes declare actions may be commenced by filing a declaration, entering a rule to plead, and serving a copy of the declaration and notice of such rule personally on the defendant. plead was dispensed with by act of 1840. In 15 Wend., 554; in 6 Hill, 11 ;

that

The rule to

and in 2 Denio, 196, it was distinctly held, that no suit was commenced until the declaration was actually served on the defendant. These cases must be regarded as furnishing the settled rule on the subject. I must, therefore, hold, that in this case no suit was cominenced before the 1st of July, and the declaration must consequently be set aside." See also, Clark agt. Crandall, 4 Hone., 127, Special Term, 1849, GRIDLEY, J., holding, that a bill of exceptions taken after the Code, in an action commenced before the Code, must be argued pursuant to the former practice.

4.2. What references have been made to this section in cases of appeal to the court of

appeals!

4. The answer to this question may be found under section 333, as to the cases to be

reviewed; to section 331 as to the time within which to appeal, and to section 323 as to the mode of review prescribed by the Code.

And in Mayor, &c., of New York agt. Schermerhorn, 1 Com., 425, September Term, 1848, and several other succeeding cases in that volume, BRONSON, J., in delivering the opinion of the court, held that the origininal section of the Code (1848), which provided for appeals, only applied, as they originally passed to actions commenced after the Code took effect (8).

In Becker agt. People, 18 N. Y. R., 488, March Term, 1859, the Court of Appeals, JOHNSON, J., stated that "The 8th section of the Code limits its effect to civil actions, and leaves the writ of error in criminal cases to issue under the judiciary act. A similar effect is produced as to judgments in mandamus, by the 471st section, which enacts that until the legislature shall otherwise provide, the second part of the Code shall not affect proceedings on mandamus or prohibition. This is as effectual to restrain the meaning of section 457 in its application to writs of mandamus and prohibition, as the 8th section is in respects to writs of error in criminal cases.'

5. Q. What references have been made to this section with regard to issuing excutions? A. In the case of Merritt agt. Wing, 4 How., 15, Special Term, February, 1849, PAIGE, J., said: By the act of 14th of May, 1840 (§ 24), an execution could not be issued until after the expiration of thirty days from the entry of judgment. The 54th section of the judiciary act (May 12, 1847), did not repeal this section of the act of 1840. The 8th section of the Code expressly confines its provisions to civil actions commenced after the time when the Code was to take effect. And the supplement to the Code does not make the 238th section of the Code (now § 283), in relation to executions, and the time of issuing the same, applicable to suits pending when the Code went into operation. This statement shows that in all suits pending when the Code took effect, the time of issuing executions must be governed by the laws then in force. This being the case, the execu tion in this suit having been issued before the expiration of thirty days from the entry of the judgment, was irregular."

But after the amendment of section 238 in 1849, making it section 283, in Catskill Bank agt. Sandford, 4 How., 102, Special Term, August, 1849, HARRIS, J., said: "The 283d and 234th sections of the amended Code are applicable, as well to judgments rendered before the Code took effect, as to judgments rendered in actions brought under the Code. So that now, in all cases, execution may be issued immediately upon perfecting judgment and at any time within five years thereafter; and after five years no execution in any case, can be issued without leave of the court upon motion. That this is so, will be obvious upon comparison of the sections mentioned, together with the 8th section, with the corresponding sections as they stood in the Code before it was amended."

6. Q. What has been decided in reference to costs in suits pending when the Code took: effect?

A. In Truscott agt. King, 4 How,, 173, Special Term, November, 1849, A. J. PARKER, J., said: "The general rule undoubtedly, is that in the absence of any statutory exception the costs would be governed by the statute (regulating costs) in force when judg ment was rendered, although the statute was passed after the commencement of the suit. But the Code has expressly excepted from its operation suits pending prior to the first day of July, 1848 (§§ 8, 471). By a subsequent statute, certain sections of the Code are made applicable to "existing suits," but those regulating "costs in civil actions" are not among the number."

In Wolfe agt. Van Nostrand, 4 How., 208, in the Court of Appeals, decided January, 1850, which was a writ of error brought on a judgment in ejectment entered before the 1st day of July, 1848, but the writ of error brought afterwards, when on its decision it was claimed by the plaintiff in error that the writ of error was a new suit, and that there had been a trial in the appellate court within the meaning of the Code, and moved for an additional allowance of costs under section 308; the court, BRONSON, Ch. J., said: "We think an additional allowance, beyond the costs, given by the 307th section of the Code, can only be made by the court of original jurisdiction, and in reference to the trial in that court."

In Doty agt. Brown, 4 How., 432, Special Term, June, 1850, MASON, J., speaking on a question of costs, where an appeal had been dismissed by the court of appeals and remitted to the supreme court, said: By section 8 of the Code, none of the sections of title 10 of the Code, entitled 'Of the costs in civil actions,' are applicable to civil actions commenced in the courts of this state before the 1st day of July, 1848, unless otherwise provided therein. And that the Code, so far as costs are concerned, except as to costs upon motion, has no application to any suit pending in the courts of this state on the 1st day of July, 1848."

But per contra, in Kanouse agt. Martin, 2 Sand., 740, General Term, November, 1850, MASON, J., it was decided, that the first question to be determined is, by what law are the costs of the appeals (in two appeals taken by the plaintiff to the court of appeals, from a judgment of the superior court, in a suit commenced before the Code, but the appeal taken afterwards) in this suit to be regulated? The 8th section of

the Code referred to by the appellant's counsel appears, however, to decide the question. It declares, in so many words, that the several titles, except the first four, relate to actions in the supreme and other courts specified, and to appeals to the court of appeals ; recognizing the distinction taken by the counsel between actions and appeals; that is, not only io actions brought after July, 1848, but to appeals also brought after that time, without reference to the time when the actions may have been brought." And it was held, that the costs recoverable on an appeal taken under the Code are to be taxed according to its provisions. A similar decision was made in the case of McMasters agt. Vernon, 4 Duer, 625, Special Term, December, 1854, opinion by BOSWORTH, J.

In People agt. Sturtevant, 9 How, 307, also a case in the N. Y. Superior Court, the question was, whether the costs upon an appeal taken by Sturtevant and his associates, defendants to, and decided by the court of appeals, in contempt, arising out of the Broadway raliroad case, ought to be taxed under and according to the provisions of the Code, or the Revised Statutes? DUER, J., in delivering the opinion of the court, said: "The object of section 8, in the preliminary title of the Code, is to announce that division of the entire act which the framers had deemed it proper to adopt. This court, in Kanouse agt. Martin, 2 Sand, 739, has expressly decided and held, that the title prefixed to the second part of the Code does not cover all the subjects which its provisions embrace, and, therefore, as defective and partial, is manifestly erroneous. And it was held that, notwithstanding the limitation implied in the title "Of civil actions," prefixed to part 2d of the Code, those provisions of that part of the Code which relate to costs upon appeals are applicable to appeals in special proceedings, as well as to those taken in civil actions, strictly so called.

In Theriot agt. Prince, 12 How., 451, Special Term, March, 1855, which was an application for costs against an executor personally, or out of the estate, in an action of trover, and verdict for testator rendered before the Code, but revived afterwards by his execu tor, and on a reference the verdict was set aside, COWLES, J., said: "The plaintiff's not being personally liable, can costs be allowed payable out of the testator's estate? The defendant claims them under the 317th section of the Code; but that section is modified by section 8, which provides that part 2 of the Code relates to actions commenced after the 1st day of July, 1848, except when otherwise provided therein.' This action having been commenced before the Code took effect, the costs must be fixed and all questions respecting them determined by the law as it existed on the 1st day of July, 1848, unless it is otherwise provided in the Code itself. It is not so otherwise provided, unless by section 459; but that section appears to have been designed to regulate the mode of condreting the action. It regulates the 'proceedings,' not the costs, except such as may arise on appeal. Such was the construction given to section 459 by DUER, J., in Rich agt, Husson (11 Leg. Obs. 119), and I concur entirely in his reasoning in that case."

7. Q. What has been decided respecting the application of this section to marine and juetices' courts ?

A. In People agt. Smith, 9 How, 465, Special Term, August, 1854, DALY J., of the N. Y. Common Pleas, held that the marine court of the city of New York had no jurisdiction to issue process against the person of a defendant; consequently that section 179 of the Code was not made applicable to that court by section 8.

And in Schadle agt. Chase, 16 How., 414, Special Term, October, 1858, CLERKE, J., said: "The marine court, in the case under consideration, had jurisdiction of the subject matter of the action; but neither the court nor any of its judges possess any power to issue an order of arrest under section 179 of the Code. On reference to section

*

8, it will be seen that the last eleven titles of the second part of the Code apply exclusively to actions in the supreme court and other courts expressly enumerated; among which the marine court is not mentioned."

In Pelham agt. Bryant, 10 How., 64, General Term, September, 1854, MASON, J., speaking of the rules of evidence applicable to justices' courts, said: "The Code is divided into two parts: the first relates to courts of justice and their jurisdiction, and the second relates to civil actions, and is distributed into fifteen titles; and by the 8th section of the Code, the first four titles of the second part are applied to all the courts of the state, while the remaining eleven titles are applied to the several courts of record only, naming them. None of the sections, therefore, concerning the rules of evidence to which we have referred, would apply to these justices' courts but for the 15th subdivision of section 61, for there is no statute applying the Code generally to these courts; and besides, it is very apparent from the act itself that the legislature did not intend to give it a general application to justices' courts. They have provided in the act a distinct system of pleading for justices, and have throughout regulated the practice in those courts by distinct enactments; and this 15th subdivision of section 64 has applied the provisions of the Code respecting the rules of evidence to these courts, that we might have the same rules of evidence obtain in all the courts."

In Perkins agt. Richmond, 17 How., 311, BRIGGS, County J., said: "While this section (8) is declaratory in form, it is one of limitation and restriction also. It declares that the first four titles of part second relate to actions in all the courts of this state; and the other titles of the same part relate to the courts therein specifically designated, and

to no others; and justices' courts not being one of the courts thus mentioned, the well settled rule of construction will exclude them from the operation or application of the remaining titles, unless those titles, or some parts or portions of them, are made applicable by subsequent sections." And held, that section 136 of the Code was not made applicable to justices' courts.

In Rice agt. Hollenbeck, 19 Barb., 666, General Term, May, 1855, MASON, J., in speaking of an objection to the non-joinder of another in the complaint, as tenant in common, as plaintiff, in an action commenced in a justices' court, for converting timber, &c., said: "In the courts of record, the 144th section of the Code allows a demurrer for this defect of parties, where, as in the present case, the defect appears upon the face of the complaint. And by section 147 the objection may be set up and taken in the answer, if it do not appear upon the face of the complaint; and it is declared in section 148, that if no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same. These sections, however, have no application to suits in justices' courts." (Code, § 8; 10 How., 64.)

In Gates agt. Ward, 17 Barb., 427, General Term, January, 1854, HAND, J., ssaid: "And the rules prescribed by the Code as to the necessary parties to an action are applicable to them (justices' courts), so far as consistent with their constitution and duties; but the authority to amend by adding parties is a different thing. It could not have been intended to give them the same general power in this respect as is possessed by this court. The system is not adapted to the proper exercise of that power. Indeed, I think section 173 is inapplicable to these courts" (Code, § 8).

This case was followed in the case of Webster agt. Hopkins, 11 How, 140, General Term, January, 1855, where it was held by BACON, J., that the sections of the Code which give this power of amending process and pleadings by adding or striking out the names of parties, and the correction of mistakes, &c., have no application to justices' courts. The title which treats of this subject, in terms, has reference to the pleadings in civil actions, and is er necessitate confined to courts of record.

In Hoffman agt. Fish, 18 Abb., 76, Genesee County Court, 1864, it was held by TAGGART, County J., that a justice of the peace cannot amend a summons issued out of his court, by correcting the name of the defendant after service of the summons, the defend. ant not appearing; that sections 174 and 175 of the Code are in title 7, and are not expressly applied by section 8 to justices' courts.

And in Williams agt. Price, 2 Sand., 229, General Term, December, 1848, SANDFOrd, J., said: "The last eight titles of the second part of the Code (1848) do not relate to actions in the marine or justices' courts, except so far as certain sections and provisions are made applicable in express terms in the other titles. (See Code, 8.) Thus, by section 61, the provisions of the sections from 48 to 57 inclusive, relating to forms of action, to pleadings, &c., are made to apply to the courts embraced in title 7 of part first, which title includes the marine and justices' courts." And held, that the summons in the marine and justices' court was not governed by the Code at all in its form, and that the pleadings might be as before, oral; and that the provision of the Code for verifying pleadings was incapable of being applied to oral pleadings.

In Cornell agt. Smith, 2 Sand., 292, General Term, December, 1848, OAKLEY, Ch. J., said: "The safe construction is to limit the meaning of sections 57 and 61 (original Code) to the form and manner of pleadings (in justices' courts, which may be oral), and not to extend them to their effect and operation."

In Norris agt. Bleakley, 3 Abb., 108, General Term, May, 1856, New York Common Pleas, which decided that a justice could not, where the plaintiff failed to appear on the adjourned day, proceed and give judgment for defendant, but should have rendered judg ment of discontinuance, BRADY, J., said: That section 8 of the Code had made the first four titles of the second part of the Code applicable to actions in all the courts, and the other titles to mayors' courts, recorders' courts of cities, and to courts of record spe cifically named. And that neither of the sections 263 and 264, which provide for affirmative relief to the defendant, are embraced within the first four titles of the second part of the Code, and there is no section by which they are made applicable to justices' courts. In Walker agt. Swayzee, 3 Abb., 136, General Term, July, 1856, New York Common Pleas, BRADY, J., said: "The appointment of a next friend can be made by a justice; section 114 being made applicable to justices' courts by section 8, and the omission to make such appointment, is not a technical objection, which under section 366 of the Code can be disregarded."

In Keeler agt. Clark, 18 Abb., 155, Special Term, August, 1864, BALCOM, J., said: "That the manner in which actions are to be commenced before justices of the peace, except those to recover the prossession of personal property, is not prescribed by the Code (See Code, § 52-63). Actions in justices' courts, except those above mentioned, are now commenced, as heretofore, by the voluntary appearance and agreement of the parties, or by summons, warrant or attachment as provided by the Revised Statutes, the act of 1831, to abolish imprisonment for debt, and the statutes amending the same. (See 3 R. S. 5 ed. 428-433; Id. 462-465; Laws of 1831, 396, ch. 300; 1 Cow. Tr. 2d ed. 451-493). Title 7 of the second part of the Code concerning provisional remedies in civil actions, does not relate to actions in courts held by iustices of the peace (Code § 8). A defendant can

not be arrested under that title, or under any other provision of the Code, in an action commenced before a justice of the peace. He can only be arrested in such an action when it is commenced by warrant issued by the justice in the manner prescribed by statute irrespective of the Code."

8. Q. How has this section been applied to the superior court, New York City? A. In Porter agt. Lord, 13 How., 254, S. C., 4 Duer, 682, Special Term, Superior Court, December, 1856, BOSWORTH, J., said: "The Code is divided into two parts (58). The second part is distributed into fifteen titles. The last eleven relate to actions in the superior court, as well as to those in the supreme court. The fifth title of the second part contains the provisions which prescribe the manner of commencing civil actions. They shall be cominenced by the service of a summons (127). The summons may be served by the sheriff of the county where the defendant may be found, or by any person not a party to the action (§ 133). These sections are made to relate to the superior court by the express provisions of section 8. (See § 33 as to the jurisdiction of the superior court.) The rule then is this: When the action must be tried in this city, because it is one of those mentioned in sections 123, 124, or when all the defendants reside in this city, or when one of several defendants jointly liable on contract resides in in the city, this court has jurisdiction of the action, and the defendants may be served with the summons in any county of the state.

9. Q. What reference has been made to this section on appeals from county court decision in case of habitual drunkards?

A. The answer will be found under section 2, Q. 9.

10. Q. What decision has been made respecting appeal from judgment of county court, in summary proceedings?

A. The answer will be found under section 2. Q. 16.

11. Q. What reference has been made to the city court of Brooklyn?

A. In Simons agt. De Bare, 4 Bosw., 553, General Term, May, 1859, BoswoRTH, J., said: "Section 8 of the Code does not in terms apply to that court any provisions of the Code, except sections 69 to 126, both inclusive. That court is not named in section 9. It is by no means clear, therefore, that the concluding sentence of section 139 applies to that court. That sentence was incorporated into the Code by the amendments enacted in 1851. If it does not apply to that court, then the voluntary appearance, in any transitory action of a defendant not residing within that city would not give to that court jurisdiction of such action. Consent cannot confer upon any court jurisdiction of an action, when jurisdiction of it is not conferred by law."

12. Q. In what respects have the provisions of the Code been extended?

A. "All the provisions of the Code of Procedure are hereby applied to all recogniz ances forfeited in any court of general sessions of the peace, or of oyer and terminer in any of the counties of this state." (Laics of 1855, p. 305, ch. 202 )

13. Q. Has the superior court of the city of New York jurisdiction of appeals from the district (justice's) courts of that city?

4. In Harkins agt. The Mayor of New York, 5 Abb., 345, Special Term, New York Superior Court, September, 1857, which was an appeal from a judgment of a district court, HOFFMAN, J., said: But if this is not a sufficient answer to the application, I should be compelled to deny it upon the ground that this court has no jurisdiction of appeals from the district courts of this city.

In Day agt. Stackhammer, 5 Abb., 344, New York Superior Court, General Term, June, 1857, which was a motion to dismiss an appeal from a judgment of the first district court of the city of New York, BOSWORTH, J., stated that "The judges of the common pleas and justices of the superior court had consulted together on the subject, and had come to the conclusion that the act of April 17th, 1857, in effect, abrogated so much of the act of April 13th, as gave the superior court power to entertain appeals from judgments rendered by a justice of one of the district courts of the city, and conferred that power on the common pleas. He also stated that he was authorized by all the judges of both courts to state their concurrence in the same conclusion. (See also Davis agt. Hudson, 5 Abb. 61; Morris agt. Willis, El. 205.)

In Wood agt. Kelly, 2 Hilt., 336, General Term, April, 1859, DALY, J., said: "When the declaratory provisions in section 8, to which our attention is called, was enacted in 1818, the superior court of this city was the appellate tribunal of the marine and district Courts (Code of 1848, $ 302), and hence the name of that court was inserted in that portion of the section relating to appeals to the courts there enumerated, as contradistinguished from actions in the courts previously enumerated; and the name of the superior court still remains in that part of the section, though it has no longer any appellate power in such cases, the jurisdiction it then exercised having been conferred exclusively upon this court by the amendment of the Code in 1849 (Code of 1819, & 351), and all the powers which it exercised in 1843, as such appellate tribunal, necessarily passed to this