THE

107

ODE OF CIVIL PROCEDURE

OF THE

STATE OF NEW-YORK,

WITH

NOTES

BY

MONTGOMERY H. THROOP,

LATELY ONE OF THE COMMISSIONERS TO REVISE THE STATUTES.

PART I.

CHAPTERS 1-13,

SENACTED IN 1876, AND AMENDED IN 1877, 1878, 1879, AND 1880.

ALBANY:

WEED, PARSONS AND COMPANY

1880.

Entered, according to Act of Congress, in the year eighteen hundred and eighty,

BY WEED, PARSONS AND COMPANY,

In the office of the Librarian of Congress, at Washington.

PREFACE

TO THE

COMPLETED CODE OF CIVIL PROCEDURE.

The first thirteen chapters of the Code of Civil Procedure were prepared, and, in the year 1876, submitted to the legislature, by the commissioners to revise the statutes; and, on the 2d day of June, 1876, were enacted into a law, which took effect on the 1st of September, 1877. They constituted but a fragment of the work, as planned by the commissioners. The bill to complete the Code, by adding the remaining nine chapters, was prepared by the commissioners, and submitted to the legislature in 1877. It passed both houses in that year, but failed to become a law in consequence of the inaction of the governor, the bill having reached his hands. within the ten days before the close of the session. The bill, with some amendments, was again submitted to the legislature, by the commissioners, at the session of 1878, at which time it again passed both houses, and was vetoed by the governor. The commissioners' term of office having expired, the vetoed bill was committed by the senate to a select committee of that body, who reported it, with additional amendments, chiefly designed to remove the governor's objections, at the session of 1879. At that session, it passed both houses for the third time, and was again vetoed by the governor. In 1880, the bill passed both houses for the fourth time, precisely in the form in which it passed and was vetoed in 1879, and another governor being then in office, it became a law on the 6th of May, 1880, to take effect on the 1st of September of that year. Meanwhile the first thirteen chapters (the repeal of which was strongly, but unsuccessfully, urged upon legislature by the messages of the governor in 1878 and 1879), constituted, as to all subjects, except those left, until the passage of the nine chapters, to be regulated by the unrepealed provisions of the former statutes, the fundamental law, regulating the civil procedure of the State. Their

the

150388

provisions were construed by numerous decisions of the courts. They were successively amended in 1877, 1878, 1879, and 1880; and various annotated editions thereof and treatises thereupon were published. The enactment of the nine chapters, and the consequent repeal, by L. 1880, ch. 245, of the former Code, and of all the provisions of the Revised Statutes and other acts then in force, relating to civil procedure, renders the completed Code of Civil Procedure a compendium of the law of the State, upon that subject. The so called "temporary act", (L. 1876, ch. 449,) which defined the expressions used in, and regulated the application of the thirteen chapters, and § 1496, which fixed the time when they took effect, have been repealed, and substitutes therefor, with other provisions pertaining to the completed work, are contained in chapter 22; one section of which (§ 3355) declares that "for the purpose of determining the effect of the different provisions of this act" (that is the 22 chapters) "with respect to each other, they are deemed to have been enacted simultaneously." Notwithstanding this direction, the circumstances that the first thirteen chapters will have been three years in operation, when the remaining nine chapters take effect in September next, and that they have consequently become familiar to the profession, and have been construed and commented upon, as already stated, will necessarily, for several years to come, create a distinction between the two divisions, in the minds of the profession; and they will naturally be called, as they are styled in this edition, Part first and Part second of the Code of Civil Procedure.

In Part first of this edition, all the amendments to the first thirteen chapters (including those made in 1880,) are incorporated into the text; and the notes have been revised so as to correspond to the amendments, and include the adjudications upon the provisions of the text published to July 1, 1880: a few, published since the notes were stereotyped, being placed in a supplement at the end of the volume.

Part second contains the text of the concluding nine chapters, with full explanatory notes, founded, as are the notes to Part first, upon the official notes, prepared by Mr. CHARLES STEBBINS and myself, as commissioners to revise the statutes, which have been amended, and in great part rewritten, so as to correspond to the changes made in the biil since they were prepared, and to contain full citations of the adjudications to July 1, 1880, which bear upon the provisions revised, and are applicable to the new provisions.

ALBANY, July 17, 1880.

MONTGOMERY H. THROOP.

For the reasons just stated, the original notes of the commissioners were subjected to extensive changes, in order to adapt them to the text of the former edition. The former notes have been again greatly changed for the purpose of this edition, many of them having been entirely rewritten, not only because the amendments to the text, made in 1878 and 1879, rendered such changes necessary, but because I have incorporated into the notes references to the adjudicated cases, published since the former edition, which construe the provisions of this Code, and those of the former Code which are substantially identical with provisions of this Code.

It results, from what I have said, that the following notes are not to be considered as official. But I was a member of the commission to revise the statutes from its creation to its termination; and I have not hesitated, in the following notes, to state directly and plainly the action, plans, and objects of the commissioners, whenever a statement thereof would tend to elucidate the subject under discussion. To have refrained from doing so would have wronged the profession, who are entitled to that information.

In the following notes, as in those which accompanied the commissioners' drafts, care has been taken to specify, under each section, from what portion of the former statutes the section in question was taken, or, if it consists of an entirely new provision of law, to state that fact; but the mere citation of a former statute, without mentioning any modification, must not be construed as meaning that the provision has been copied from it. For reasons, which have been frequently stated, and which it is therefore unnecessary to repeat here, nearly every provision of the former statutes, which has been revised in the Code of Civil Procedure, has been rewritten, and subjected, in that