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Execution when issuable on a judgment docketed

control.

PART III.

shall be valid and effectual. But this section shall not extend the right of review, to any case or question to which it does not now extend, nor the time for appealing, nor shall it apply to a case where a writ of error has been already issued.

$ 458. An execution may be issued without leave of the court upon a judgment docketed before the first day of July,

1848, or now or hereafter to be rendered in an action pending before July on that day, at any time within five years after rendering of 1, 1848.

the judgment. Future pro

$ 459. The provisions of this act apply to future proceedoeedings, Code to

ings in actions or suits heretofore commenced and now pending, as follows:

1. If there have been no pleading therein, to the pleadings and all subsequent proceedings;

2. When there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings;

3. After a judgment or order, to the proceedings to enforce, vacate, modify or reverse it, including the costs of an appeal.

Whenever the judges of the supreme court in any district find that the court, at any term or circuit, has not been, or will not be able to dispose of all the cases upon the calendar, they may request the governor to assign other judges, and, if necessary, appoint extraordinary terms and circuits for the purpose of disposing of such cases. The governor may thereupon make such assignment, and the judges assigned must hold courts accordingly.

As amended by Laws of 1851, ch. 479.
19 B., 531; 14 B., 570; 13 B., 92; 14 How. P. R., 187; 4 Ab., 359; 2 Ab.,

163; 1 Ab., 119, 181. Appeals $ 460. An appeal may be taken from any final decree decrees by a entered upon the direction of a single judge, in any suit in single judge equity pending in the supreme court, on the first day of July, suits pend: one thousand eight hundred and forty-seven, at any time 1, 1847, before the first day of November, one thousand eight hunhow taken. dred and fifty-two. But this provision shall not apply to

cases where a rehearing has already been had or ordered, or to the case of a decree entered before the passage of this act, and to review which no attempt in good faith has been, or shall have been, made within thirty days after notice of the entry of such decree. Such appeal shall be taken in the manner provided in sections three hundred and twenty-seven and three hundred and forty-eight.

In all cases of appeal to the court of appeals, in actions which were originally commenced in the late court of chancery of this state, the court of appeals shall review the cause upon the facts and the law, without any statement or specification of facts found, or any exception taken, at the trial of any or either of them. And it shall be, and is hereby declared to be

when and

the duty of the court of appeals, in any and all such cases, to CHAP. XI. review the whole matter upon the evidence as well as the law.

As amended by Laws of 1851, ch. 479; 1852, ch. 392; 1858, ch. 306.

19 N. Y., 530; 10 N. Y., 389; 4 How. P. R., 145. S 461. An issue of fact joined in a county court, or court of issue of common pleas, before the first day of July, one thousand county eight hundred and forty-eight, or then pending in that court common on appeal, shall be tried by a jury, unless the parties other- Plees het wise agree.

1848, how

tried. TITLE XV.

GENERAL PROVISIONS. SEC. 462. Definition of "real property."

463. Definition of a personal property." 464 Definition of "property." 465. Definition of " district." 466, Definition of " clerk." 467. Rule of strict construction of statutes inapplicable to this act. 468. Statutory provisions inconsistent with this act repealed. 469. Rules and practice inconsistent with this act abrogated. 470. Judges of supreme court to make general rules. 471. This act not to affect certain proceedings and statutory provisions. 472. Certain parts of revised and other statutes not repealed. 473. This act, when to take effect. $ 462. The words “real property," as used in this act are Definition

of “real co-extensive with lands, tenements and hereditaments. property."

9 N. Y., 148; 2 Ab., 235. $ 463. The words “personal property," as used in this act, Definition include money, goods, chattels, things in action, and evi- sonal prodences of debt.

perty." 9 N. Y., 148; 2 Ab., 234. § 464. The word "property,” as used in this act, includes Definition

of "proproperty real and personal.

perty." 9 N. Y., 148; 30 B., 61; 12 Ab., 60; 10 Ab., 88; 2 Ab., 234, 247. $ 465. The word " district," as used in this act, signifies Definition judicial district, except when otherwise specified. 466. The word “clerk," as used in this act, signifies the Definition

of "clerk," clerk of the court where the action is pending, and in the supreme court, the clerk of the county mentioned in the title of the complaint, or in another county to which the court may have changed the place of trial, unless otherwise specified.

6 How. P. R., 191. $ 467. The rule of common law, that statutes in derogation Rule of of that law are to be strictly construed, has no application to struction

of this act.

statutes, in

applicable 16 B., 510.

to this act. S 468. All statutory provisions inconsistent with this act, Statntory are repealed; but this repeal shall not revive a statute or law inconsistwhich may have been repealed or abolished by the provisions en with hereby repealed. And all rights of action given or secured by repealed. existing laws, may be prosecuted in the manner provided by this act. If a case shall arise in which an action for the

trict."

inconsist

PART III, enforcement or protection of a right, or the redress or preven

tion of a wrong, cannot be had under this act, the practice heretofore in use may be adopted so far as may be necessary to prevent a failure of justice.

19 N. Y., 492; 22 B., 367; 15 B., 604; 19 How. P. R., 565; 15 How. P.

R., 226; 13 How. P. R., 131; 8 How. P. R., 626; 5 How. P. R., 126;

12 Ab., 182, 389; 11 Ab., 227; 1 Ab., 455. Rules and S 469. The present rules and practice of the courts, in civil practice actions, inconsistent with this act, are abrogated; but where ent with consistent with this act, they shall continue in force subject this act abrogated. to the power of the respective courts to relax, modify, or alter the same.

10 N. Y., 503; 8 B., 657; 14 How. P. R., 95; 12 How. P. R., 156; 10

How. P. R., 85; 13 Ab., 423; 12 Ab., 182; 9 Ab., 103; 7 Ab., 72,

94, 362; 6 Ab., 69; 4 Ab., 59, 250; 1 Ab., 2, 263, 357, 455. Judges of S 470. The judges of the supreme court, of the superior what court to make

court of the city of New York, and of the court of common whes, and pleas for the city and county of New York, shall meet in

general session at the capitol in the city of Albany, on the
first Wednesday in August, one thousand eight hundred and
fifty-two, and every two years thereafter, and at such sessions
shall revise their general rules and make such amendments
thereto, and such further rules not inconsistent with this Code,
as may be necessary to carry it into full effect. The rules so
made shall govern the supreme court, the superior court of the
city of New York, the court of common pleas for the city and
county of New York, and the county courts, so far as the
same may be applicable.

As amended by Laws of 1851, ch. 479; 1852, ch. 392.
19 B., 591; 8 B., 354, 657; 17 How. P. R., 383; 6 How. P. R., 50; 10

Ab., 360. This act not $ 471. Until the legislature shall otherwise provide, the terte et pro. second part of this act shall not affect procedings upon manceedings damus, or prohibition ; nor appeals from surrogates' courts; and statutory pro except that the costs on such appeal shall be regulated and visions.

allowed in the manner provided in section 318 of this act;
nor any special statutory remedy not heretofore obtained by
action; nor any existing statutory provisions relating to
actions, not inconsistent with this act, and in substance appli-
cable to the actions hereby provided; nor any proceedings
provided for by chapter five of the second part of the Re-
vised Statutes, or by the sixth and eighth titles of chapter five
of the third part of those Statutes, or by chapter eight of the
same part, excluding the second and twelfth titles thereof, or
by the first title of chapter nine of the same part ; except that
when in consequence of any such proceeding, a civil action
shall be brought, such action shall be conducted in conformity
to this act; and except, also, that where any particular pro-
vision of the titles and chapters enumerated in this section
shall be plainly inconsistent with this act, such provision
shall be deemed repealed.

Amended by Laws of 1852, ch. 392; 1862, ch. 460; 1863, ch. 392.
23 N. Y., 27; 5 N. Y., 385; 32 B., 477; 26 B., 361; 24 B., 444; 22 B.,

CHAP. XI. 367; 16 B., 592; 11 B., 619; 23 How. P. R., 198; 20 How, P. R., 379; 19 How. P. R., 565; 16 How. P. R., 4, 43; 15 How. P. R., 372; 14 How. P. R., 481; 12 How. P. R., 29; 11 How. P. R., 89; 10 How. P. R., 487; 13 Ab., 409; 12 Ab., 182; 11 Ab., 227; 10 Ab., 95; 7 Ab., 139; 6 Ab., 31, 287, 345; 5 Ab., 212, 384; 2 Ab.,

20; 1 Ab., 402, 455, 464. S 472. Nothing in this act contained shall be taken to re certain peal section 23 of article 2 of title 5 of chapter 6, part 3d, of revised and the Revised Statutes, or to repeal an act to extend the ex- tutes not emption of household furniture and working tools from dis- repealed. tress for rent and sale under execution, passed April 11, 1842.

24 B., 444. $ 473. This act shall take effect on the first day of July, This act, 1848; except that sections 22, 23, 24 and 25 shall take effect the effect. immediately.

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CHAP 439.
AN ACT to amend an act entitled “An act to facilitate

the determination of existing suits in the courts of this
State."

PASSED April 11, 1849.
The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

The act entitled “ An act to facilitate the determination of existing suits in the courts of this State,” passed April 12, 1848, is hereby amended so as to read as follows:

$ 1. The act to simplify and abridge the practice, pleadings and proceedings of the courts of this State, passed April 12, 1848, and amended at the present session of the legislature, is herein designated as the “Code of Procedure."

10

the

TITLE I.

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PROVISIONS RELATING TO THE COURTS IN GENERAL.
CHAPTER L Sections of the Code of Procedure referred to and applied to existing

suits
IL Other provisions relating to existing suits.

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Reer five of the zof, or

ot that

action formity ar prosection orision

CHAPTER I.
SECTIONS OF THE CODE OF PROCEDURE REFERRED TO AND APPLIED TO

EXISTING SUITS.
$ 2. The provisions of the Code of Procedure, contained in
the following sections thereof, are hereby applied, so far as
the same are applicable, to future proceedings in civil suits,
whether at law or in equity, pending on the first day of July,
1848, as follows:

1. Sections seventy-two, one hundred and twenty-one, one
hundred and sixty-nine to one hundred and seventy-six, both
inclusive, three hundred and fifteen and three hundred and

V.-17

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PART III.

eighty-eight, to proceedings in 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 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;

2. Sections two hundred and ninety-two to three hundred and two, both inclusive, to executions on a judgment or decree in any of those courts, hereafter issued, against any person to the sheriff of the county where he resides, or if he reside out of the state, to the sheriff of the county where the record of judgment is filed or the decree enrolled; the word “ judgment" in these sections being taken to include a decree;

3. Sections three hundred and twenty-three to three hundred and thirty-one, both inclusive, three hundred and thirtythree to three hundred and forty-seven, both inclusive, and three hundred and fifty-one to three hundred and seventy-one, both inclusive, to the review of judgments, decrees, and final orders, from which no writ of error or appeal shall have been already taken, the word “judgment” being taken to include a decree, and “judgment roll” to include the record of judgment and enrollment of decree;

4. Sections three hundred and ninety to three hundred and ninety-nine, both inclusive, four hundred and six to four hundred and fifteen, both inclusive, four hundred and seventeen and four hundred and eighteen, to proceedings in actions in all the courts of civil jurisdiction in the state;

5. Section four hundred and two, to non-enumerated motions in the courts mentioned in the first subdivision of this section.

CHAPTER II,

OTHER PROVISIONS RELATING TO EXISTING SUITS.

Saits referred by consent.

when

$ 3. Any suit in equity now pending in the supreme court,

or which may be there pending before the first day of July Reference next, or any issue therein, whether of fact or of law, or both, testimony. may be referred upon the written consent of the parties con

cerned; and upon the like consent, a reference may be ordered to take testimony, or to report facts, or to execute any order

or decree. Reference S 4. Where the parties do not consent, as in the last section directed by mentioned, the court may, upon the application of either, or

of its own motion, direct a reference in such suit, in the following cases:

1. Where the determination of an issue of fact shall reqnire the examination of a long account on either side; in which case the reference may be to hear and decide the whole issue, or to report upon any specific question of fact involved therein; or

2. Where the taking of an account shall be necessary for

court,

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