THE NEW PRACTICE ACTS

A paper Read by J. Henry Walters, formerly Chairman of the Joint Legislative Committee on the Simplification of Civil Practice at the annual Meeting of the New York State Bar Association, New York City, January 22, 1921.

THE NEW PRACTICE ACTS

Since the adoption of the present Code of civil procedure nearly a half a century ago, there has been persistent demand for a change in our procedural methods. There have been committees of the State Bar Association, legislative committees, state boards and commissions, and many individuals, working from time to time in an effort to evolve a system of civil practice which would have fewer objections than our present system under the Throop code as amended. It has been recognized by all who have given attention to the subject that a perfect practice cannot be attained under any system which might be devised and that no plan can be offered which will be satisfactory to all who have to do with practice in the courts. The aim of all has been to simplify our practice but the means of accomplishing that simplification have varied with the ideas of those individuals who have devoted themselves to the work.

The culmination of all of this effort was reached last winter (1920) when the legislature adopted and the governor approved a number of bills presented by the Joint Legislative Committee on the simplification of civil practice. By one of the acts passed, chapter 925, the present code of civil procedure is repealed, and a new "Civil practice act" and several practice acts for particular courts are substituted.

The civil practice enactments of the last session of the legislature are the outgrowth of the work begun by the Board of Statutory Consolidation some years ago and later taken up by a joint committee composed of members of the Senate and Assembly. This Joint Committee made a through and comprehensive study of the plan recommended by the Statutory Consolidation Board and all plans of other associations and committees. It later held numerous meetings with bar associations and lawyers in different parts of the state. It sent out thousands of cireulars, pamphlets, questionnaires and reports to the judges and lawyers of the state. It courted the widest study of the subject of practice revision and sought suggestions and advice from every possible source. On several occasions the subject has been before this association for full and free discussion at its annual meetings. At intervals as the work progressed, the Joint Committee caused to be printed and distributed detailed information as to its ideas and plans.

As a result of all of its study and investigation of the present practice system, the present code, the plans suggested by all committees and boards of the past years, and suggestions received from individual members of the bench and bar, the Joint Committee finally reached definite conclusions as to the course which should be pursued in the interest of justice generally.

For the purpose of this discussion a review of all of the plans advocated by others for code simplification is unnecessary. It is sufficient to outline the plan recommended to the legislature by the Joint Committee and to state what actual changes have been made by the new enactments by a comparison with the present Code of civil procedure. Bills carrying out the plans of the Joint Committee were introduced in the legislature at the session of 1919, but were not pressed for passage at that time, the idea being to afford plenty of time for their examination by the public before final action should be sought. They were examined by the bar during the summer of 1919, rechecked and revised in minor particulars by the Joint Committee and again introduced in the legislature in February, 1920, and enacted into law, at that session. In this connection it may be proper to state that practically all of the information following has already been given to the bar and the public in the report of the Joint Committee to the legislature under date of April 17, 1919, many thousands of copies of which report, consisting of 1,476 pages, have been widely distributed.

Plan of Joint Legislature Committee

The plan of the Joint Committee as embodied in bills introduced in the legislature at the session of 1920, all of which bills became laws, was, briefly, as follows:

First. The enactment of a separate Justice court act, a Surrogate's court act, a Court of claims act, and a New York city court act. Provisions relating to the practice in these courts have not been included in the "Civil practice act." The text of the Surrogate's court act is unchanged from the form in which it was revised by the commission of surrogates in 1914 and subsequently amended. The Justice court act is now a complete manual of the practice in justice courts.

Second. The transfer to the Consolidated laws of certain provisions of the Code which were clearly substantive law and, without inconvenience, might be disassociated from general practice provisions. Also the transfer to appropriate Consolidated laws of certain infrequent actions and proceedings whereby the bulk of the practice act should be reduced without causing inconvenience in practice.

Third. The enactment of a "Civil practice act" containing such practice regulations as should be enacted in statutory form.

Civil Practice Act

The Committee proposed and the legislature enacted a new practice act known as the "Civil practice act." This new act, with appropriate rules of court, and the special court acts, will take the place of the present Code of civil procedure. It was the judgment of the Committee that its plan of combining in a single act to be adopted by the legislature all of the general practice provisions in the course of an ordinary action, except such as should be covered by rules, was preferable for many reasons to any plan which would require an examination of a number of other acts before the general practice provisions could be discovered.

The plan of the Committee involved the omission from the proposed act of many regulations of procedural details some of which should be dropped entirely and others of which should be covered by court rules. In determining between what should be statute and what should be court rules, the general principle followed was to include in statute, rights of action and rights arising in the course of an action, and to recommend for court rules, details of practice and procedure.

In order to avoid confusion between references in court decisions, text-books, and elsewhere, to the new practice act and to the Code of civil procedure, the committee suggested "Civil practice act" as the title for the new statute. The same name was adopted by the Board of Statutory Consolidated for its proposed practice act.

Judicial Decisions Retained

In drafting the sections of the Civil practice act, and also all of the practice acts of particular courts, the language as appearing in the corresponding code sections was retained in identical form in most cases and the vast amount of judicial interpretation now existing as to code provisions will apply with equal force to the new acts.

Among some lawyers there seems to exist an unfounded misapprehension of confusion in practice to follow the advent of the Civil practice act. The present Code is issued by law-book publishers annotated with all relevant court decisions assembled in connection with the proper sections together with adequate source notes and tables of distribution. A like service will be rendered in the publishers' editions of the new practice acts. The practioner will turn to the new practice volume with the same ease and confidence as he now refers to the Code and with a minimum of inconvenience.

Arragement of Civil Practice Act

One of the great objections to the present Code arises from the arrangement of its provisions, or rather from the lack of arrangement. The Code has been the subject of frequent legislative additions and often these additions have been made without apparent thought as to the proper location of the new matter. Furthermore a very large part of the Code has been removed in recent years and transferred to various Consolidated laws, leaving here and there but fragments of the former body and in some cases these are quite unrelated to the preceding and following portions of the Code. The result is that there is no real working arrangement of the present Code pro

visions.

The Joint Committee arranged the provisions incorporated in the new act under a logical as well as a convenient working arrangement following the orderly progress of an action through the various steps from its inception to its final conclusion and satisfaction. After a brief acquaintance with the new act, the simplicity of its arrangement will be found to obviate to large extent even resort to an index of its provisions.

The Civil practice act consists of 89 articles and 1540 sections. There are no confusing chapter or title divisions of the text but a division merely into articles and sections.

The first three articles deal with general construction and definitions, limitations of time for the commencement of civil actions and proceedings, and general jurisdiction and powers of courts, judges and referees.

Following these three introductory articles are grouped Articles 4-22 embracing practice provisions more or less general in their nature, under the syllabus heading "General practice provisions." These articles, arranged in alphabetical order of subjects, cover abatement and continuance of actions; consolidation and severance; extensions of time; filing of papers; mandates; mistakes, defects and irregularities; motions; notices of pendency; oaths of referees and other officers; orders; payments into and out of court; preferences among actions; publication of notices and other papers; security by bonds and undertakings generally; service of papers; stay of proceedings generally; stipulations in lieu of certifications; tender and offer of compromise; and dismissal for want of prosecution.

Then come the articles under "Commencement of Action" covering venue, parties, summons, appearance, pleadings, and interpleader. Articles under "Preparation for trial " follow and these include the taking of testimony by deposition and also discovery and inspection provisions. Articles embracing these subjects are grouped next and in the order named: "Evidence," "Trial," "Judgment," "Motions for new trials, "Appeals," "Executions" and "Provisional remedies." Provisions defining the practice in particular actions and proceedings make up the next twenty-two articles, followed by "Costs, disbursements and fees." The last article contains saving and repealing clauses.

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Under this allocation of related provisions it is believed that there will be not only greater convenience in the use of the practice provisions than has been possible under the present Code of civil procedure but that the bringing together of such related provisions will of itself do away with much of the confusion in practice now existing.

Changes in Practice.

The Civil practice act proposed by the Joint Committee and passed by the legislature contains many changes in practice, all of which, in the judgment of the committee, will tend toward the betterment of our system of practice.

Attention is directed to some of the changes.

Joinder of Parties

A number of broad provisions upon this subject have been included in the new act. These provide that non-joinder or misjoinder of parties shall not defeat an action or proceeding; that new parties may be added or substituted and parties mis-joined may be dropped at any time; that all parties may be joined as plaintiffs or defendants in whom or against whom any right to relief is alleged to exist, whether jointly, severally or in the alternative; that each defendant need not be interested as to all the relief prayed for; and that where the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants with the intent that the question as to which is liable and to what extent may be determined. (C. P. A. §§ 192, 209, 211– 213.) The provisions are modeled largely upon the English practice rules.

Consolidation and Severance

A general section is included in the new practice providing that for the purpose of expediting the determination of controversies, an action may be severed and actions may be consolidated whenever it can be done without prejudice to a substantial right. (C. P. A. § 96.)

Demurrers Abolished

In the Civil practice act, the demurrer as a separate pleading has been abolished. An objection to a pleading in point of law for a ground appearing on the face of the pleading may be taken under the proposed new practice by motion. The demurrer has been abolished in England and New Jersey.

Mistakes and Defects

The new practice act contains several new sections upon the subject of mistakes, defects and irregularities and the supplying of omissions. Justice is often defeated by too strict adherence to laws regulating these matters. The enactment of the broad provisions proposed by the Committee is a great step towards the liberalization of practice and will obviate many of the technicalities of the existing practice. The sections have been drawn in quite general language and are intended to meet technical objections as they may arise at any stage of an action or proceeding, even on appeal. (C.P.A. §§ 105, 106, 110.)

A general section providing that when it shall appear in any action or proceding that the appropriate remedy upon the facts pleaded or proved is different from that asked for in the pleadings or corresponding papers, the proceedings may be amended, upon proper terms, and may be continued or determined by the court and at the term where then pending, or remitted to the proper term to be disposed of, in order that the relief may be finally granted which is appropriate to the facts, to the same extent as if the application had been in the first instance for the relief granted. (C. P. A. § 111.) A similar provision is now found in the Code but it is applicable only to mandamus and certiorari proceedings.

Court Orders and Judges' Orders

The distinction between court orders and judges' orders when in effect made by supreme court justices has been abolished in the new practice. (C. P. A. § 129.)

Uniformity in Provisional Remedies

A number of new sections relating to orders of arrest, temporary injunctions and warrants of attachment, are included in the Civil practice act, making the practice in these proceedings as uniform as possible so far as relates to the application for the order or warrant, the proof on the application or hearing, the granting of the remedy, the security required, the recital of grounds, new proof on a application to vacate, and the granting of the relief after a counterclaim has been interposed. (C. P. A. §§ 814-825.)

In addition to making the provisions more uniform, a number of sections relating to the various provisional remedies have been clarified in language and a number of amendments have been made to existing practice in the interest of simplicity.

Reversal by Appellate Division to Specify Grounds

A new section has been inserted (C. P. A. § 620) requiring a decision of the appellate division reversing a judgment or order to state the exact ruling of the court, that is, whether or not a reversal was made upon the facts or upon the law or upon both the law and facts or that the facts were affirmed and that the reversal was upon the law and also whether or not the decision was unanimous as to an issue or party.

Extensions of Time

A new section, formed in broad terms, relating to extensions of time by courts and judges, has been included. (C. P. A. § 98.)

Writs Abolished

The writs of mandamus, prohibition and of certiorari to review the determination of an inferior tribunal, have been abolished and the relief heretofore obtained under the provisions of the Code will be obtained by order under the new practice. (C. P. A. §§ 1283, 1313, 1341.) In each of these cases under the present practice an order must be secured first before the writ is allowed by the court and issued by the clerk. Under the new practice the order will be granted and thereupon entered in the county clerk's office and certified copies served, thereby doing away with the necessity of a writ.

The writs of habeas corpus and certiorari to inquire into the cause of detention provided by sections 2015-2066 of the Code have been retained in view of the provisions of section 4, article 1 of the state Constitution which provides that "the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require its suspension." It might be constitutional to abolish the "writ" itself if the right to the same relief were recognized and provided for by appropriate order, but such action would undoubtedly result in litigation.

The writ of habeas corpus to bring up a person to testify has been abolished in the new practice and an order substituted. (C. P. A. §§ 415-420.)

The writ of assessment of damages now covered by sections 2103-2119 of the Code of civil procedure, has been omitted as unnecessary and obsolete.

Filing Papers

Section 824 of the Code now provides that the summons and each pleading in an action must be filed with the clerk by the party in whose behalf it is served within ten days after service. This requirement is observed rarely at the present time. The provision has been amended so as to provide for filing "within five days after notice from the adverse party requiring such filing and upon failure to comply with such notice, the court or a judge, in its or his discretion, may order that such summons or pleading be deemed abandoned either absolutely or upon failure to file within a time, if any, permitted by the order." (C. P. A. § 100.) This section as thus amended will provide a method of requiring the filing whenever it shall appear necessary or proper.

Referees, Receivers, Commissioners and Appraisers

Uniform provisions have been included in the Civil practice act (C. P. A. §§ 81, 126) providing for the removal of a referee, receiver, commissioner or appraiser, the appointment of successors and the oaths of such officers.

Service of Papers

The provision now contained in section 801 of the Code, applicable to New York city only, providing that deposit in a branch post-office, shall have the same effect as a deposit in the general or principal post-office, has been extended in the new practice so that it is applicable generally throughout the state. (C. P. A. § 164.)

Service of Summons on Incompetent Persons

A new provision is inserted in the Civil practice act providing that where a defendant has been judicially declared incompetent to manage his affairs, and a committee has been appointed, the court, in its discretion, may make an order dispensing with delivery of the summons upon the defendant in person. (C. P. A. § 225, subd. 2.)

Substituted Service of Summons

The provisions relating to substituted service of a summons have been clarified.

The Civil practice act contains a new provision to the effect that an order for service of a summons by publication upon an infant or incompetent defendant may be made where complete personal service of the summons cannot be made within the state, after due diligence, upon such infant or incompetent, whether a resident or non-resident of the state, by delivering a copy to the person or persons to whom a copy is required to be delivered in the case of personal service. (C. P. A. § 232, subd. 4.) This provision has been included in the new practice to cover cases where it is now found practically impossible to secure complete service of a summons upon an infant or incompetent under the present Code.

Service of Summons Where People are Party

A new provision has been uncluded in the Civil practice act stating that in any case where the people of the state are by law a proper party defendant, the summons shall be served upon the attorney-general, and also the further provision that the delivery of a copy of the summons to a deputy attorney-general shall be equivalent to personal service upon the attorney-general. (C. P.

A. § 221.) The Code now contains several sections making similar provision but in particular actions only. The practice has been made general.

Appearance of Party

The provision of Code section 55 to the effect that if a party has an attorney in the action, he cannot appear to act in person, where an attorney may appear or act either by special provision of law, or by the course and practice of the court, has been changed to broaden the right of appearance by a party by providing that a party having an attorney may so appear to act in person in the action with the consent of the court. (C. P. A. § 236.)

Additional Counterclaims

Code section 501 specifying the cases in which a counterclaim can be interposed has been changed to permit the allowance of counterclaims against the plaintiff and third persons. (C. P. A. § 266.) The new practice also provides that where a defendant sets up any counterclaim which raises questions between himself and the plaintiff along with any other persons, he must set forth the names of all persons who, if such counterclaim were to be enforced by cross action, would be defendants to such cross action. Where any such person is not a party to the action, he shall be summoned to appear by being served with a copy of the answer and he thereby becomes a defendant in the action as if he had been served with a summons.

Action Against Corporation on Promissory Note

Code section 1778 now provides that in an action against a foreign or domestic corporation to recover damages for the non-payment of a promissory or other evidence of debt, unless the defendant obtains and serves with his answer or demurrer an order directing a trial of the issues, the plaintiff may take judgment as on a default. The provision is technical. In practically every such case such order is granted as a matter of course upon proof no stronger than verification. The requirement of an order in such cases has been omitted and as a substitute it is required that the answer of the corporation must be verified. (C. P. A. § 252.)

Judgments on Pleadings or Admission of Part of Cause

A broad general section has been included providing that judgment may be rendered by the court in favor of any party or parties and against any party or parties at any stage of an action or appeal if warranted by the pleadings or the admissions of a party or parties and a judgment may be rendered by the court as part of a cause of action and the action proceed as to the remaining issues, as justice may require. (C. P. A. § 476.)

Effect of Judgment Dismissing Complaint

The Code provides that a final judgment dismissing a complaint "either before or after a trial" does not prevent a new action unless it expressly declares, or it appears by the judgment roll, that it is rendered upon the merits. The Committee adopted the suggestion of the Board of Statutory Consolidation and various bar associations that the rule, while remaining the same as to a dismissal before the close of the plaintiff's evidence, should be changed as to a dismissal at any time thereafter and in such case the dismissal will be deemed to be a final determination on the merits and will bar a new action unless the court shall dismiss without prejudice. The new practice so provides. (C. P. A. § 482.)

Declaratory Judgments

The subject of "declaratory judgments" is one which has been receiving much consideration in various parts of the country in recent years. The Joint Committee carefully examined the recommendations for a provision authorizing the granting of declaratory judgments in this state and caused to be included in the new practice the following section:

"The supreme court shall have power in any action or proceeding to declare rights and other legal relations on request for such declaration whether or not further relief is or could be claimed, and such declaration shall have the force of a final judgment. Such provisions shall be made by rules as may be necessary and proper to carry into effect the provisions of this section." ." (C. P. A. § 473.)

Under the rules adopted on the subject in this state, the courts may decline to pronounce a declaratory judgment in their discretion. Provision is made for settlement of questions of fact by a jury and also for appeals in such actions "as in other causes."

Depositions of Parties and Witnesses

The Civil practice act simplifies the procedure for obtaining the testimony of a party or other person by deposition. The present cumbersome, technical and lengthy affidavit for obtaining an order is dispensed with, together with the order itself. The first step under the new practice is to serve a notice of the time and place of the proposed examination, the name of the witness and the nature of the issues. The examination follows as a matter of course unless the notice is vacated or modified on motion of the adverse party. The grounds upon which a deposition may be obtained are the same as at present except that the party may cause his own testimony to be taken as a matter of course and except also that the deposition of a witness may be so taken if he lives more than