In Hall agt. Bartlett, 9 Barb., 300, Special Term, August, 1850, HAND, J., said: "Snit and action are often synonymous; though an action may be considered a form of a suit; and the latter is often applied to proceedings in equity, and actions to those at law, up to judgment."

In Meyer agt. Van Collem, 7, Abb., 223, General Term, October, 1858, SUTHERLAND, J., speaking of a demurrer to a complaint, because it did not state facts sufficient to constitute a cause of action, said: "The Code (§ 2) defines an action to be an ordinary proceeding in a court of justice, by one party, against any other party, for the enforcement er protection of a right, the redress or prevention of a wrong, &c. A cause of action may be defined to be, the right which a party has to institute and carry through such a proceeding. The complaint states the facts showing this right. The unity of the right to be enforced, or of the wrong to be redressed, constitutes the unity of the action." 8. Q. Have proceedings under the mechanics' lien law been included in an action!

A. In People agt. County Judge of Rensselaer, 13 How., 398, Special Term, August, 1854, HARRIS, J., held that a judgment of a justice's court in proceedings instituted under and in pursuance of the provisions of the mechanics' lien law (in the statutes), is a judgment in a civil action, and subject to review on appeal.

9. Q. What has been decided in reference to an appeal from a county court in case of an habitual drunkard?

A. In the matter of Henry Smith, 16 How., 569, BALCOM, J., stated that "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 (Code § 318). That part of the Code which relates to civil actions commenced since the first day of July, 1848 (see Code, § 8.) is declared not to affect any proceedings provided for by ch. 5, part 2 of the Revised Statutes (ý 471).

10. Q. What has been said in reference to an application to be admitted an attorney and counsellor at law?

A. See under section 1, ante, 1st Q. and A.

11. Q. What has been said in reference to the foreclosure of a mortgage by advertisement? A. In Hall agt. Bartlett, 9 Barb., 300, Special Term, August, 1850, HAND, J., said: "That a proceeding to foreclose a mortgage by advertisement is not a suit. Such a proceeding is merely the act of the mortgagee executing the power of sale given to him by the mortgagor (Jackson agt. Dimmick, 14 John. 443). In no sense is it a suit in any court, and all definitions of that word require it to be a proceeding in some court" (Code, §§ 1, 2, 3). 12. Q. What is said of actions by the attorney general to test the title to lands?

A. In People agt. Clarke, 11 Barb., 337, Special Term, June, 1851, WILLARD, J., said of such an action, that "as the defendant is not prosecuted in this case for a public offense, the action is necessarily a civil action. Indeed, the 433d section, under which this action is brought, calls it an action in terms."

13. Q. What is said in reference to feigned issues?

A. In Shell agt. Loucks, 12 Barb., 387, General Term, January, 1852, WILLARD, J., said: "The issue tried in this case was a substitute for a feigned issue under the former practice (Code, §73). It was not a civil action (Code, 2). The Code is entirely silent as to the remedy for an erroneous decision made by the judge on the trial of such an issue." 14. Q. What is said of equitable defenses and counter-claims?

A. In Ires agt. Miller, 19 Barb., 202, General Term, January, 1855, HAND, J., said: "Equitable defenses and counter-claims are now admissible in a variety of cases; but it does not follow that there is no restriction, whatever the incongruity. Under the arbitrary definition of an 'action,' as given by section 2 of the Code, there are many causes of action arising on contract which under sections 149, 150, can be no answer to a suit." 15. Q. What is said of mesne profits?

4. In Holmes agt. Davis, 21 Barb., 273, General Term, December, 1855, WELLES, J., said: "No one will deny, I apprehend, that a party is entitled to a remedy for a claim to mesne profits, unlawfully withheld from him; and if so entitled, that remedy must be by action or special proceeding (Code, §§ 1, 2). The remedy would be an ordinary proceeding in a court of justice for the enforcement of a right, and, therefore, an action. No one would think of calling it a special proceeding. It never was so regarded before the Code."

This case was affirmed by the court of appeals, 19 N. Y. R., 492, June Term, 1859, DENIO, J., delivering the opinion of the court, saying: "When, therefore, the Code came to unite the various classes of actions into one, under which all rights of action were to be enforced, and to abolish all peculiarities in the forms of pleading, the remedy for mesne profits naturally fell into the arrangement, and became the subject of a civil action

under the new system; and the peculiar method of commencing it by suggestion, became inapplicable."

16. Q. What is said of summary proceedings between landlord and tenant?

A. In Deuel agt. Rust, 24 Barb., 444, General Term, April, 1857, BIRDSEYE, J., said: "Allowing the review of such judgments by the county court, the proceeding, at least when taken before a justice of the peace, becomes an ordinary proceeding in a court of justice, by which a party prosecutes another party, for the enforcement and protection of a right, or the redress or prevention of a wrong."" It is, therefore, a civil action under sections 2 and 6 of the Code."

But the majority of the court in this case, Judges S. B. STRONG and EMOTT, were of opinion that the judgment of the county court was not capable of review in the supreme court by way of appeal. That it was final in the sense of being ultimate and conclusive, at least so far as a review by appeal was concerned. Where the proceedings are not before a justice of the peace, under the act of 1849, the magistrate is not required to enter any "judgment," but simply to issue his warrant of removal of the tenant (2 R. S. 514, § 33, and 515, § 39). In such a case the county court has no jurisdiction, and this court can review the proceedings, only by certiorari under the provisions of section 47 of the article of the Revised Statutes, relating to these proceedings.

But in Benjamin agt. Benjamin, 1 Seld., 385, September Term, 1851, the court, McCOUN. J., said: "This statutory remedy by way of a summary proceeding, is in derogation of the common law remedy by action, and must be strictly pursued. A peculiar and limited jurisdiction is thereby conferred on certain magistrates, which can be exercised only in the way prescribed. They have no jurisdiction to try the cause, except by the mode pointed out. The law has made no provision for dispensing with a jury in such cases. even by express waiver or consent. The Code exempts proceedings of this sort from its operation (Code, § 471), and the waiver of trial by jury under the Code (§ 268), can have no application."

And in People agt. Willis, 5 Abb., 212, Special Term, September, 1857, the above case was followed, Judge DAVIES saying: "We must, therefore, hold in obedience to this plain mandate of the legislature, that these provisions of the Code, as amended, confer no power upon the court of common pleas to entertain these special proceedings. The court of appeals have decided this question in the case of Benjamin agt. Benjamin (supra), holding that the Code, by this section 471, exempts proceedings of this sort from its operation." In Romaine agt. Kinshimer, 2 Hilt., 521, Special Term, April, 1858, HILTON, J., speaking of an appeal in summary proceedings between landlord and tenant, says: "Section 352 of the Code, upon which the decision in Davis agt. Hudson (5 Abb. 63), is based, in no way relates to special proceedings of this kind, but on the contrary applies only to appeals in civil actions. It forms a part of chapter 5, title 9, of the second part of the Code, which, by sections 1, 2, 3, &c., is expressly limited to civil actions, and which, by section 471, it is declared, shall not affect any proceedings provided for by chapter 8, part 3 of the Revised Statutes, excluding the 2d and 12th titles thereof (Benjamin agt. Benjamin, 1 Seld. 383). There cannot be a doubt that the only method of reviewing a proceeding of this nature, in the city of New York, is by writ of certiorari issuing from the Supreme Court, (see 2d R. S. 516, §§ 47, 48; People agt. Willis, 5 Abb. 205).

17. Q. What has been said in reference to the submission of controversies under section 372? A. In Lang agt. Ropke, 1 Duer, 702, General Term, April, 1853, OAKLEY, J., in speaking of an application to vacate a judgment and for a new trial, in ejectment, where judg ment had been rendered on submission of the controversy without action, said: "But the proceeding in which this judgment has been rendered, ís not an action, and by calling it such we should contradict the plain words of the Code, which describe it as the submission by the parties, without action, of a question in difference, to a court which would have had jurisdiction if an action had been brought (§ 372). It is equally clear that it neither falls within the former technical meaning of an action, nor within the terms of the definition which the Code has given" (§ 2).

18. Q. What has been said of proceedings under the R. S., to dissolve moneyed corporations? A. In Kattenstroth agt The Astor Bank, 2 Duer, 632, Special Term, May, 1853, BosWORTH, J., said: The proceeding is, perhaps, one coming within the definition of an

action" (Code, § 2).

19. Q. What has been said of proceedings under the R. S., to compel the determination of claims to real property?

A. In the case of Mann agt. Provost, 3 Abb., 449, Special Term, November, 1856, BIRDSEYE, J., said: "On a view of all these provisions of the several statutes, I am constrained to the conclusion that these proceedings have lost the mere statutory character they once possessed. That they are now, to most if not all intents, an action within section 2 of the Code. That the relief sought is special, and some of the proceedings are peculiar, and required to conform to the provisions of a particular statute, does not warrant a different conclusion. For no one doubts that proceedings to foreclose a mortgage,

or obtain a partition or sale of land, or for waste, are within the meaning of the Code,

actions.

20. Q. What has been decided in reference to quo warranto?

A. In People agt. Cook, 4 Seld., 71, March Term, 1853, the Court, WILLARD, J., say: "The 428th section of the Code, abolishes the writ of quo warranto, and proceedings by information in the nature of quo warranto, and enacts that the remedy theretofore obtainable in those forms, may obtained by civil actions, under the provisions of that chapter. The present action was brought under those provisions, and is, therefore, a civil action."

21. Q. What is said of proceedings against the representatives of a deceased judgment debtor, under section 376!

A. In Mills agt. Thursby, 2 Abh., 432, General Term, February, 1856, MITCHELL, J., said: "The Code does not treat this proceeding (a proceeding against executors and administrators under § 376) as an action. It directs the judgment to be given in the same manner as in an action, thus negativing the idea there is an action, and for the same reasons it makes special provisions for the form of the summons and its service, and for the pleadings and the mode of enforcing the judgment; it sedulously avoids calling the parties plaintiff's and defendants, dispenses with any new complaint, and makes the summons not for the payment of money, or for relief, but to show cause. It is not an action for the recovery of money in its general sense, for that allows a personal judgment against the defendant. It is a proceeding in court with most of the forms of an action, but for only one specific object, viz.: to enforce the original judgment against the estate of the deceased judgment debtor in the hands of the parties summoned. Costs may be given, because the judgment may be given in the same manner as in an action, and in certain cases, costs may be given against an executor in an action."

2. Q. What has been said in reference to an application made upon petition under the Revised Statutes, to compel a discovery of books and papers?

A. In Follett agt. Weed, 3 Hor., 303, Special Term, September, 1848. This cause is at issue, and an application is now made upon a petition under the Revised Statutes (2 K. S. 199, 200), for an order compelling the defendants to discover certain books and papers in their possession, which are necessary to enable the plaintiff to prepare for trial. SILL, J., said (speaking of § 343): "It is suggested that the section last cited 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."

23. Q. What has been decided in reference to creditors' suits?

A. In Quick agt. Keeler, 2 Sund., 231, Special Term, December, 1848, SANDFORD, J., of the New York Superior Court, speaking of a suit in the nature of a former creditor's bill, says: "This suit is undoubtedly an 'action' within the definition of the Code."

In Dunham agt. Nicholson, 2 Sand., 636, General Term, February, 1849, it was decided by the Court, that an action in the nature of a creditor's bill, might be maintained, where an execution was issued and returned unsatisfied before July 1, 1848, when the Code took effect.

24. Q. What has been decided as to the reference of claims against the representatives of deceased persons?

A. In Coe agt. Coe, 37 Barb., 232, General Term, October, 1861, ALLEN, J., said: "The proceeding (a reference under the statute upon claims against deceased persons), is substantially a suit, being a legal proceeding in a court to ascertain the amount due, to enforce its collection (Robert agt. Ditmas, 7 Wend., 522). It is not commenced by the service of a summons, and is not an ordinary proceeding for the enforcement of a right, and is not, therefore, technically an action within the provision and definition of the Code (65 2. 127). It is nevertheless a judicial proceeding, terminating in a judgment" (People agt. County Judge of Rensselaer, 3 How. 198).

25. Q. What has been decided as to proceedings upon mandamus?

A. In People agt. Colborne, 20 How., 378, Special Term, February, 1861, POTTER, J., held, that it was obvious from the very character of the proceedings intended by the language "suits" and "proceedings" in the Revised Statutes (2 R. S. 618, §§ 38, 42), that actions were intended, and that the proceeding by mandamus was an action.

In People agt. Lewis, 28 How., 172, General Term, January, 1863, MASON, J., held, that if any question could be regarded as settled in that (6th) district, it was that a proceeding upon mandamus, where there has been a return, and the suit has gone to pleadings, and a trial thereon has been had, was not a special proceeding under the Code, but an action (S. C. affirmed in court of appeals, 28 How. 470).

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

1. A proceeding for the partition of lands, is a civil action under the Code.

2. The legislature did not intend to limit the number of civil actions, as they are defined in this and other sections of the Code.

3. The former proceeding by scire facias, no longer exists, and that right may now be prosecuted by action under the Code.

4. A former creditor's bill, is now an action under the Code.

5. Whether an appeal from a surrogate's court is to be regarded an action, or a special proceeding, is immaterial as regards the question of costs, as sections 303, 318 are sufficient to provide for such a case.

6. A judgment under the provisions of the mechanic's lien law, is to be regarded a judgment in a civil action.

7. An appeal from a county court, in case of an habitual drunkard, is to be deemed an action at law only for the purpose of costs.

8. An action by the attorney general to test the titles to lands, is a civil action.

9. Under the arbitrary definition of an "action" given in this section, there are many equitable defenses and counter-claims which, under sections 149, 150, can be no answer to it.

10. "The right to mesne profits, must be enforced by action.

11. A proceeding under the Revised Statutes, to dissolve a moneyed coporation, comes within the definition of an action.

12. A proceeding under the Revised Statutes, to compel a determination to a claim to real property, is an action.

13. The former writ of quo warranto, and proceedings by information in that nature, are abolished, and the remedy is now by civil action. Also, the proceeding by mandamus is an action.

14. An application to be admitted an attorney and counsellor at law is not an action. 15. Proceedings to foreclose a mortgage by advertisement is not an action.

16. The trial of what was formerly called a feigned issue, is not a civil action. 17. Summary proceedings between landlord and tenant, are exempted by the Code from its operation. They are, therefore, to be prosecuted under the provisions of the Revised Statutes, as special proceedings, and not as an action under the Code.

18. The submission of a controversy under section 372 of the Code, is not an action. 19. A proceeding against the representatives of a deceased judgment debtor under section 376 of the Code, is not an action.

20, An application by petition under the Revised Statutes for the discovery of books and papers, is not an action.

21. A proceeding to refer claims, under the statute, against the representatives of deceased persons is not technically an action, as defined by this section of the Code.

3. Special proceeding.

Every other remedy is a special proceeding.

Questions.

1 Question. What has been said of proceedings supplementary to execution?

2. Q. What has been said of a summary proceeding under the statute to compel a party to support a poor relative?

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

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?

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

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

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

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

9. Q. What has been said of proceedings to foreclose a mortgage by advertisement? 10. Q. What has been said of summary proceedings between landlord and tenant! 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?

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

13. Q. What has been decided as to a writ of certiorari?

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

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

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

17. Q. How are errors to be corrected in special proceedings, wherein the court or officer are required to ascertain particular facts?

1. Question. What has been said of proceedings supplementary to execution? Answer. In Davis agt. Turner, 4 How., 190, Special Term, December, 1849, WILLARD, J., said: "The Code divides remedies into actions and special proceedings (§ 1). The proceedings supplementary to an execution (Code, § 292), are of the latter character. They are usually instituted by the judgment creditor against the judgment debtor; but other persons may, it is believed, be made parties."

But in Dresser agt. Van Pelt, 15 How., 23, General Term, November, 1857, HOFFMAN, J., of the N. Y. Superior Court, said: "The supplementary proceeding under section 292, et seq., is a proceeding in an action to enforce a judgment. It forms part of title 9, entitled "Of the execution of judgments in civil actions.' It is not a special proceeding within section 3 of the Code, although once treated as such by WILLARD, J (4 How, Pr. R. 190). The authors of the Code speak in their report (p. 2) of the parts of the entire Code relating to criminal actions and to special proceedings (including arbitrations, habeas corpus, the discharge of insolvent debtors, the enforcement of mechanics' liens, &c.), as to form the subjects of future reports by them. The proceedings under a railroad act, and under a plank road act, in the cases in 1 Kern., 276, and 3 Code R., 148, were special proceedings within the sense of section 3; not a proceeding in a civil action within section 2."

In Spare agt. Young, 1 Bos., 695, General Term, December, 1858, BOSWORTH, J., speaking of supplementary proceeedings, says: "We see no alternative between holding the proceeding to be an action, which will be depending from the time it is commenced until it is terminated by an order of the judge; or a statutory proceeding, which will cease to be operative whenever the party instituting it fails to appear and move in it, on any day to which it may have been adjourned. The Code defines an action, and this proceeding does not fall within that definition (Code, §2). This examination is permitted to enable a creditor summarily, and without action, to obtain an application of the debtor's property to pay the judgment. It is not a proceeding had in

court, but it is had before a judge out of court. It is not a proceeding incident to the action; it is wholly a creature of the statute."

2. Q. What has been said of a summary proceeding under the statute to compel a party to support a poor relative?

A. In Hariland agt. White, 7 Hone., 157, General Term, October, 1852, BARCULO, J., said: "That this proceeding before a court of sessions is a special proceeding, within the meaning of the section, is manifest from the definition of that term given by the Code itself. It divides all remedies into 'actions' and 'special proceedings.' It defines an action to be an ordinary proceeding in a court of justice, by which a party prosecutes another,' &c., and then declares that every other remedy is a special proceeding" (§§ 1, 2 and 3).