HI! II lil HUH !i II Hill 111 II! II ill I Willi! IL i I I (gornell ICaw §>rlionl library Cornell University Library KFN6010.M49 Important features of pleading a nd Pjact 3 1924 022 783 454 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022783454 IMPORTANT FEATURES or Pleading and Practice UNDER THE New York Civil Practice Act BY HAEOLD E. MEDINA, A.B., LL.B. OF THE NEW YORK BAR INSTRUCTOR IN NE"W YORK PLEADING AND PRACTICE AT THE COLUMBIA UNIVERSITY LAW SCHOOL NEW YORK BAKER, VOORHIS & CO. 1922 (b 3 1 1 i>' o Copyright, 1922 BY HAEOLD E. MEDINA PREFACE. This series of ten lectures was originally delivered in New York City in October 1921, immediately after the Civil Practice Act went into effect ; the course was repeated in New York in November 1921, and again at .White Plains, in April 1922. Portions of it were also delivered in the form of single evening addresses to groups of practicing lawyers at New Rochelle, Tarry- town and other places. They were finally given, sub- stantially in the form as here printed, in New York City in May 1922. Because of the many requests from all parts of the State of New York for the subject matter in printed form the present volume has been published. It is the purpose of the lectures to set forth briefly the changes in the New York law of pleading and prac- tice accomplished by the Civil Practice Act and the Rules of Civil Practice which took effect on October 1st, 1921, and to discuss in some detail the effect of such new provisions as may be regarded as substantial or fundamental. No attempt has been made to refer specifically to every change to be found in the new law, as it contains an infinite number of slight modifications of the lan- guage formerly used in the Code of Civil Procedure, many of which have been inserted merely for the pur- pose of clarification, and the enumeration of these slight changes would serve no useful purpose and would prove very tedious and uninteresting reading. It is believed, however, that all of the really important modifications in the law have been discussed. As is already well understood, a number of changes IV PREFACE. in the arrangement of the material formerly included in the Code of Civil Procedure consisted in removing certain of this material to the various Chapters of the Consolidated Laws, and in creating certain new and separate Acts, such as the Surrogate's Court Act, the New York City Court Act, the Justices' Court Act and so on. As these former sections of the Code of Civil Procedure may easily be located by reference to the table now published with the new Civil Practice Act, no enumeration of such changes has been made in any of these lectures. A perhaps not surprising but at least significant fact is that since October 1st, 1921, there have been over 650 decisions relating to sections of the Civil Practice Act and the Eules of Civil Practice appearing in the New York Law Journal alone. All of these decisions, and also a considerable number from other parts of the state, have been carefully considered in connection with these lectures. It is a great pleasure to note that, with a very few exceptions, the distinct tendency of the courts in all parts of the state has been to interpret the provisions of the new law in a broad and liberal spirit. No doubt some errors will be found herein. It is hoped they may be few and that they may not be judged too harshly. Many thanks are due to the practicing attorneys and clerks of courts who, while attending the lectures. as originally given, made a large number of helpful inquiries and suggestions, a considerable number of which are included in the material in its present final form. HAEOLD E. MEDINA. New York City, June 5th, 1922. TABLE OF CONTENTS. LECTURE PACE I Historical Outline 1 Organization of Courts 11 Summons and Service Thereof 13 II Mistakes, Defects and Irregularities 35 Complaint 42 Joinder of Parties 43 III Answer 59 Verification 65 Motions with Reference to Pleadings 67 Motions in Lieu of Demurrers 71 IV Motion for Judgment under Rule 107 77 Motions for Summary Judgments under Rules 113, 114 79 Motion for Judgment under Section 478 93 Motions Generally 94 Consolidation and Severance 96 V Depositions 100 Depositions — Motions to Vacate or Modify Notice 114 Depositions — Examination Pursuant to Order 120 Deposition Pursuant to Stipulation 125 Depositions — Conduct of Examination 126 VI Depositions taken without the State 128 Use of Depositions at Trial 131 Incidental Practice 133 Tender 136 Extensions of Time 137 Amendments of Course. 139 Bonds and Undertakings 141 Sale of Perishable Property 142 Enforcement of Foreign Decree of Divorce or Separation. . . 144 Service of Interlocutory Papers 144 Court and Judges ' Orders 147 Revival Proceedings 149 VII Compulsory Admissions 151 Discovery and Inspection 155 Cancellation of Lis Pendens 158 Appellate Practice 158 VIII State Writs Abolished 164 Provisional Remedies'. 167 v VI TABLE OF CONTENTS. LECTURE PAGE IX Trial Practice 185 Application of Provisions of Civil Practice Act and Kules of Civil Practice to Municipal Court of New York City and City Court of New York City 198 X Declaratory Judgments 207 The Declaratory Judgment in England 216 No Declaration Where Special Tribunal Can Handle Situa- tion 223 Value as an Alternative Remedy 224 The Negative Declaration 227 Necessity of Some Claim Against Plaintiff Who is Seeking Declaration 240 Crown may be Defendant in Action for Declaration 243 Uses of Declaratory Judgments 244 Table of Cases Cited vii Index 247 TABLE OF CASES CITED. PAGE Adelmann v. Lamb, N. Y. L. J., Apr. 6, 1922 57 American Discount Corp'n v. Moore, N. Y. L. J., Nov. 4, 1921 16 American Woodpulp Corporation v. Miami Paper Co., N. Y. L. J., Apr. 6, 1922 89 Anway v. Grand Kapids Ry., 179 N. W. 350 212, 213 Appelbaum v. Gross, 117 Misc. 140 89 Auditore v. Cantanzaro, 117 Misc. 253 38 Austen v. Collins, (1886) 54 L. T. K. 903 218 Barraclough v. Brown, (1897) A. C. 615 224, 229, 230 Bassel v. Selis, N. Y. L. J., Jan. 17, 1922 110, 112 Bauer v. Dewey, 166 N. Y. 402 53 Bellok v. Ninth Avenue Ry. Co., N. Y. L. J., Dec. 13, 1921 56 Benediktsson v. Weston Dodson & Co. Inc., N. Y. L. J., Jan. 24, 1922 95 Blaekwell v. Columbia Trust Co., 192 N. Y. Supp. 226 59, 69 Bristol Manufacturing Co. v. Zahn, N. Y. L. J., Apr. 11, 1922 52 Brody v. Madison Lunch, Inc., N. Y. L. J., Dee. 16, 1921 97 Brooking v. Mandsley Son & Field, (1898) 38 Ch. D. 636 228 Brooklyn Clothing Corp'n v. People's Nat. Fire Ins. Co., N. Y. L. J., May 22, 1922 92 Brooks v. Brooks, 190 App. Div. 564 30 Brown Paint Co. v. Reinhardt, 210 N. Y. 162 193 Buehler v. Bush, 200 App. Div. 206 9 Buell v. Van Camp, 119 N. Y. 160 169 Bull v. Attorney-General for New South Wales, (1916) A. C. 564. 224 Burghes v. Attorney-General, (1911) 2 Ch. 139, affd. (1912) 1 Ch. 173 220, 224, 234, 235, 240, 243 Campbell v. Bauland Co., 41 App. Div. 474 108 Chapman v. Michaelson, (A. C.) (1909) 1 Ch. 238 234 Chelsea Exchange Bank v. Munoz, 118 Misc. 159 90 Chersonsky v. Seheflin, N. Y L. J., Jan. 19, 1922 19 Clare v. Lockard, 122 N. Y. 263 33 Clay v. Booth, (A. C.) (1919) 1 Ch. 66 221, 240, 241, 243 Coghlan v. Jenkins, N. Y. L. J., May 6, 1922 10 Cohen v. Richman, N. Y. L. J., Jan. 25, 1922 89 Cohen, Goldman & Co. Inc. v. Ellmann, N. Y. L. J., Apr. 29, 1922. 89 vii V1U TABLE OF CASES CITED. PA.OT Commercial Union of America, Inc. v. Ipranossian, N. Y. L. J., Jan. 10, 1922 38 Crowe v. Marsh Garage Co., Inc., 117 Misc. 660 205 Curtis v. Sheffield, (1882) 51 L. J. Ch. 535, 21 Ch. D. 1 216 Cutler v. Allavena, 165 App. Div. 422' 174 Dahlstrom v. Gemunder, 198 N. Y. 449 68 DePuy v. Strong, 37 N. Y. 372 76 Dodds v. Lamar, N. Y. L. J., Feb. 24, 1922 89 Dwan v. Massarene, 199 App. Div. 872 81, 82, 83, 84 Dyson v. Attorney-General, (1911) 1 K. B. 410.. 220, 234, 235, 240, 243 Eisenberg v. Eisenberg, N. Y. L. X, May 19, 1922 144 Engelhardt Co. v. Benjamin, 2 App. Div. 91 176 Evans v. Manchester, Sheffield & Lincolnshire R. R. Co., (1887) 36 Ch. D. 626 226 Faber v. Gosworth Urban District Council, (1903), 88 L. T. K. 549. . 218 Peizi v. Second Russian Insurance Co., 199 App. Div. 775 38, 197 Fisher v. Chas. H. Van Aken Co., Inc., N. Y. L. J., May 3, 1922. . 13 Fosmire v. National Surety Co., 229 N. Y. 564 70 Fromm v. Grisman & Palm Knitting Co., N. Y. L. J., May 24, 1922 118 Gabriel v. Great Atlantic & Pacific Tea Co., N. Y. L. J., May 25, 1922 108 General Investment Co. v. Interboro Rapid Transit Co.. N. Y. L. J., May 6, 1922 86 Gribbon ». Freel, 93 N. Y. 93 15 Guaranty Trust Co. v. Hannay & Co., (1915) 2 K. B. 536. .221, 222, 227 229, 234, 236, 237, 240, 241 Hanna v. Mitchell, N. Y. L. J., Mar. 3, 1922 86 Hanrahan v. Terminal Station Commission, 206 N. Y. 494 211 Hays v. National Surety Co., N. Y. L. J., May 23, 1922 86 Helme v. Buckelew, 229 N. Y. 363, 372 213 High Rock Knitting Co. v. Bronner, 18 Misc. 627 66 Hoormann v. Climax Cycle Co., 9 App. Div. 579 168 Hopkinson v. Mortimer, Harley & Co. Limited, (1917) 1 Ch. 646. . 242 Horter v. DeMesa, 196 App. Div. 462 136 Hoxsie v. Berri, N. Y. L. J., Mar. 14, 1922 88 International Time Recording Co. of N. Y. v. Waverly Machine & Tool Co., N. Y. L. J., May 9, 1922 ! 60 TABLE OF CASES CITED. IX r '"' f! ' ' PAGE) Jaworower v. Rovere, 98 Misc. 377, affd. 177 A. D. 740 135, 136 Kahn v. Rich, N. Y. L. J., May 9, 1922 '. 104 Kelly-Hughes Co., Inc., v. Jaffe, N. Y. L. J., Dec. 14, 1921 28 Kenngott v. Kenngott, 190 N. Y. Supp. 282 16 King v. King, 59 App. Div. 128 169 Kirsehbaum v. Eschmann, 205 N. Y. 127 68 Kleinberg v. Fireman's Fund Insurance Co., N. Y. L. J., Jan. 11, 1922 106 Kohn v. Thomas, N. Y. L. J., Jan. 19, 1922 89 Koppel Industrial Car & Equipment Co. v. Portalis & Co., Ltd., N. Y. L. J., May 20, 1922 153, 154 Kossman v. Samuel, N. Y. L. J., March 29, 1922 54 Langf elder v. Levy, N. Y. L. J., May 17, 1922 155 Lash v. Indemnity Insurance Co., N. Y. L. J.. March 11, 1922... . 62 Lerner v. Herman, N. Y. L. J., May 12, 1922 107 Leslie v. Peggy Hoyt, Inc., N. Y. L. J., May 16, 1922 106 Levy v. Nemours Trading Corporation, N. Y. L. J., Dec. 19, 1922.. 103 Lichstrahl v. Liehstrahl, 38 Misc. 331 175 London Association of Shipowners v. London and India Docks Committee, (1892) 3 Ch. 242 228, 240, 242 Lowther v. New York Life Insurance Co., N. Y. L. J., March 21, 1922 20 MeBride v. Hodgens, N. Y. L. J., May 24, 1922 92 McCoy v. Erie Forge & Steel Co., N. Y. L. J., Feb. 21, 1922 38 MaeDonald v. Hamilton B. Wills & Co., Limited, 199 App. Div. 203 9 McDonald v. Metropolitan Street Railway Co., 167 N. Y. 66 186 Manhattan Commercial Co. v. Leuchtenberg, 77 Misc. 565 174 Market National Bank v. Pacific National Bank, 89 N. Y. 397 30 Midower v. MacDermott, N. Y. L. J., Jan. 10, 1922 20 Miners & Merchants' Bank v. Ardsley Hall Co., 113 App. Div. 194. 132 Mitchell v. Schroeder, 94 Misc. 270, affd. 174 App. Div. 857 203, 204, 205 Murphy v. Globe Indemnity Co., N. Y. L. J., May 18, 1922 92 National Park Bank of N. Y. v. Union Bank of Canada, N. Y. L. J., April 26, 1922 62 Nemours-Stevens, Lim., v. Nemours Trading Corp'n, N. Y. L. J., May 16, 1922 92 Neuowich v. Ironbound Realty Corp 'n, N. Y. L. J., March 28, 1922 . 91 Newman v. Potter, N. Y. L. J., June 3, 1922 106, 121 X TABLE OF CASES CITED. PAGE N. Y. 8. M. Milk Pan Assn. v. The Remington Agricultural Works, 89 N. Y. 22 55 Nissly & Sons v. Frank & Co., N. Y. L. J., March 21, 1922 78 Norman Oil Corporation v. Bensabat, 118 Misc. 398 113 North Eastern Marine Engineering Co. v. Leeds Forge Co., (1906) 1 Ch. 324 219, 232 Offin v. Rochford Rural District Council, (1906) 1 Ch. 342 233, 236 137 East 66th Street, Inc., v. Lawrence, 118 Misc. 486 7, 52 Orvigs Dampskibsselskab Aktieselskab, a Norwegian Corporation, v. Jewett, Bigelow & Brooks, Inc., N. Y. L. J., Jan. 26, 1922 93 Pelzer v. United Dredging Co., 200 App. Div. 646 55 Pennoyer v. Nefi, 95 U. S. 714 26 People ex rel. SemenofE v. Nagle, — App. Div. — 165 Polakoff v. Mme. Juliette Embroideries, Inc., N. Y. L. J., Dec. 23, 1921 71 Price v. Levy, 93 App. Div. 274 168 Publishers' Press v. Federal Telegraph Co., N. Y. L. J., June 3, 1922. 113 Purvis v. Purvis, 167 App. Div. 717 33, 34 Reilly v. Baldwin Locomotive Works, N. Y. L. J., Dec. 23, 1921 7 Reinboth v. Ederheimer, 134 N. Y. Supp. 16 174 Ritz-Carlton Restaurant & Hotel Co. v. Ditmars, 118 Misc. 457 205 Rogan v. Consolidated Copper Mines Co., 117 Misc. 718 86 Rooke v. Lord Kensington, (1856) 2 K. & J. 753 217 Rudd v. Heckscher, N. Y. L. J., April 19, 1922 103 Salzman v. Knobel, N. Y. L. J., March 11, 1922 17 Savage Realty Co., Inc., v. Lust, N. Y. L. J., Feb. 21, 1922 96 Schack v. Bryan, 118 Misc. 90 17, 18 Shaw v. Samley Realty Co., Inc., N. Y. L. J., Feb. 10, 1922 118 Sheaf er v. Vermont Hygeia Ice Co., N. Y. L. J., May 2, 1922 31 Shepherd v. Shepherd, 51 Misc. 418, 421 180 Siccardi v. Ajello, 117 Misc. 118 16, 18 Siegfried Lowenthal, Inc., v. Sullivan, N. Y. L. J., Feb. 25, 1922. . 109 Sloane v. Hill, N. Y. L. J., Dec. 20, 1921 101 Societe Maritime et Commereiale v. Venus Steam Shipping Co. (1904) 9 Com. Cas. 289 222, 232 Stehli Silks Corp. v. Kleinberg, 200 App. Div. 16 7, 37, 197 Sternstein v. State Bank, N. Y. L. J., May 24, 1922 62, 63 Stott v. C. B. Drake & Co., Inc., N. Y. L. J., May 25, 1922 92 Strasch v. Rosenblatt et al., N. Y. L. J., Jan 12, 1922 11 TABLE OF CASES CITED. XI PAGE) Taylor v. Brooklyn Elevated Railroad Co., 119 N. Y. 581 137 The Manar, 1903 P. 95 230 Twigg v. Twigg, 117 Misc. 154 85 U. T. Hungerford Brass & Copper Co. v. James 0. Davis, N. Y. L. J., May 13, 1922 57 Vandeweghe v. Schwartz, 187 App. Div. 219 176 Vestry of the Parish of St. Mary, Islington, v. Hornsey Urban District Council, (1900) (C. A.), 1 Ch. 695 225 Waddel v. Madden, N. Y. L. J., Dec. 16, 1921 201 Wait's New York Practice Simplified, Volume I, p. 349 48 WalkofC v. Chasanoff, N. Y. L. J., May 2, 1922 97 Wallace v. Bernhardt, 11 Misc. 519 Ill Wayland v. Tysen, 45 N. Y. 281 81, 82, 83 Weiss v. Asmenit, N. Y. L. J., Feb. 4, 1922 97 Westbury-on-Severn Rural Sanitary Authority v. Meredith, 30 Ch. D. 387 230 Western Electric Co., Inc., v. Zimmet, N. Y. L. J., May 1, 1922 89 Whiton v. Morning Journal Assn., 23 Misc. 299 38 Williams v. North's Navigation Colleries, 1889, Ld., (1904) 2 K. B. 44 219, 231 Wilson v. Alland Bros. & Co., Inc., N. Y. L. J., May 17, 1922 51 Wolfe v. Union, etc., Paper Co., 148 App. Div. 623 108 Wolfe v. Hubert, 200 App. Div. 124 38 Wulstein v. Wulstein, N. Y. L. J., June 2, 1922 138 Course of Lectures on the New York Civil Practice Act and the Rules of Civil Practice LECTUKE L Historical Outline. Before entering upon a discussion in detail of the provisions of the new Civil Practice Act and the Rules of Civil Practice which took effect on October 1st, 1921, it is important to understand at least in a general way the history of procedural reform in the State of New York which led up to the adoption of the Civil Practice Act by the Legislature in 1920. There has never been a time in this State when the clamor for reform in matters of practice and procedure has ceased; and indeed, the conditions which have existed in the past have amply justified the public demand for simplifi- cation and reform. In the early part of the nineteenth century matters of procedure were regulated by a great many special rules adopted by the various courts and also by a large number of statutory provisions appear- ing in the various separately published volumes of the Acts of the Legislature. No attempt whatever had been made to coordinate these rules, nor was anyone other than the most skillful and erudite practitioners familiar with them. It was by no means an unusual occurrence for a litigant to find his case disposed of upon some technical ground which left the merits of the case entirely untouched, with the result that an enor- mous public demand for procedural reform developed culminating in the passage of the Code of Procedure, & CIVIL PRACTICE ACT LECTURES. commonly known as the Field Code, in 1848. The demand at that time Avas largely for a definite and pre- cise set of rules covering the various matters of plead- ing and practice in such fashion that the rules and their application might be made thoroughly plain and under- standable. After a further period during which great dissatisfaction with the Field Code was expressed and many radically different plans of reform suggested, the Code of Civil Procedure, commonly known as the Throop Code, was finally adopted in 1877. The reform accomplished by the passage of the Code of Civil Pro- cedure, which was at once copied by a great many of the other States throughout the country, was the great detail with which every step in the course of a civil action was specifically set forth with detailed provisions and definitions to cover special matters, particular actions and special proceedings. We all know that those provisions which seemed so plain and understandable as they were first written proved, in their application to the specific facts of the many cases which arose, a source of continual controversy, and the decisions construing the various sections of the Code of Civil Procedure are legion. Thus it was that with the natural back-swing of the pendulum, there came a time when with the experience of the reformed procedure in England and the short practice act and rules of the State of New Jersey in mind, the demand for further and radical reform in this State grew into a request for a short practice act and rules. Not that this demand was in any sense unan- imous, but that many careful practitioners felt that the very detail which encumbered the Code was of itself a fruitful source of further litigation which might well be avoided by adopting the short practice act and rules HISTORICAL OUTLINE. 6 system. Then again criticism was heaped upon the system which made it possible for the Legislature at every session to tinker with the Code of Civil Proced- ure, thus creating new ambiguities and fostering a wholly unscientific and haphazard development of the law of procedure. It was stated by these critics that the short practice act would place within the power of the Legislature only broad and fundamental matters, reserving to the judges the formulation of rules cover- ing matters of detail. In 1915 there was submitted to the Legislature by the Board of Statutory Consolidation, of which Hon. Adolph J. Eodenbeck was the Chairman, a proposed short practice act for enactment and a proposed set of suggested rules. The Eodenbeck proposed act was never passed but it served to stimulate a more careful discussion of the whole subject and resulted in the appointment of a Joint Legislative Committee in 1916, of which State Senator J. Henry Walters Avas the chair- man. The present Practice Act as finally enacted in 1920 was prepared by the Walters Committee after an exhaustive canvass of the State to get the consensus of opinion from lawyers in all parts of the State concerning the proposed reform. There are certain features of the Practice Act as thus prepared and submitted which it is well to bear in mind. In the first place it may clearly be charac- terized as a compromise between the system embodied in the Code of Civil Procedure and the proposed short practice act and rules system. It is a compromise in this sense, that most of the general provisions concern- ing the course of the ordinary civil action, including matters of jurisdiction, general practice, provisional remedies, trials, judgments and appeals, still appear ■* CIVIL PBACTICE ACT LECTURES. in the statute itself, together with many of the pro- visions relating to particular actions and proceedings and the provisions relating to costs, disbursements and fees. On the other hand, the subject matter now cov- ered by the Eules of Civil Practice is very much more extensive than that previously included in the old Gen- eral Rules of Practice. There were eighty-six General Rules of Practice and there are now three hundred Rules of Civil Practice. The Legislature thus retains general control over the great body of the law of pro- cedure in the State, but has lost control over many of the details of practice that it had under the Code. In the second place, the suggestions of the Board of Statutory Consolidation have largely been carried out in the matter of transferring to the Consolidated Laws a great deal of material formerly included in the Code. There is now a separate Surrogate's Court Act, a sep- arate New York City Court Act, a separate Justices' Court Act, and many former provisions of the Code have been transferred to the Civil Rights Law, the Condemnation Law, the Decedents' Estate Law, the General Corporation Law, the Prison Law, the Real Property Law, the Judiciary Law, and so on. No attempt will here be made to enumerate the provisions that have thus been taken to the various parts of the Consolidated Laws as they may easily be found by consulting the table of distribution which is published in all standard editions of the Civil Practice Act, and in the Parsons' Practice Manual there will be found conveniently reprinted in the back of the volume in alphabetical order the various portions of the Consol- idated Laws containing matter removed from the former Code. It must be borne in mind that the Civil Practice Act HISTORICAL OUTLINE. and the Bules of Civil Practice are in no sense a short practice act and rules. In all probability, the amount of printed matter contained in the Code is very little, if at all, greater than the amount of printed matter now contained in the Civil Practice Act, the Bules of Civil Practice and the various separate statutes to which former provisions of the Code have been removed. This being the case, there has been a great deal of somewhat acrimonious criticism of the Civil Practice Act on the ground that such reforms as have been accomplished might just as easily have been brought about by a systematic and thorough amendment of the Code preserving the old section numbers and the old arrangement. I do not believe this criticism is well founded. The present rearrangement is much more logical, the arrangement of the sections is much more convenient, the subject matter is more compact, and the result has been a more perfect Act as a whole than it would seem could have been possible by a mere set of amendments to the Code. It will, of course, be inconvenient for a time for lawyers to acquaint them- selves with the new arrangement and the new numbers. I believe, however, that this inconvenience is not as great as has been supposed. Furthermore, the benefit of a new and distinct act which is thoroughly under- stood by the Bench and Bar to be the result of a reform movement calling for greater liberality and less techni- cality in matters of procedure, has made it possible for the judges to take the Act as a new and independent statute and construe it accordingly in a spirit of broad liberality. I remember very well hearing a number of prominent members of the Bar discussing the Practice Act in October 1921. The consensus of opinion as expressed 6 CIVIL PRACTICE ACT LECTURES. by this little group at that time was that the Civil Prac- tice Act was all well enough in its way, hut that it would do no good at all unless liberally construed by the judges, and each and every member of the group expressed the opinion that the Practice Act would be construed in the same narrow and technical fashion as was the Code with the result that in a few years we would find ourselves largely in the position from which we started. I did not share these views and I remem- ber being told by these gentlemen at the time that I was too optimistic, but that I should learn with time. Fortunately, the many opinions that have already been rendered with reference to the Practice Act indicate a positive zeal on the part of the courts generally throughout the State to interpret its pro- visions in an extremely liberal way. A splendid start has been made and I personally believe that as soon as the Bar in general comes to fully realize that the judges as a whole are determined to give a broad and liberal construction to the Practice Act and each and every part thereof, we shall find that the reform accomplished has been far more substantial than even its most opti- mistic proponents had hoped. I am emphasizing this circumstance at the very beginning of this course, because I think it should be constantly borne in mind and because I have noted a distinct tendency on the part of many lawyers to single out with meticulous care in many of the sections some little word or punc- tuation mark which may give some color to a conten- tion which would in effect nullify the result apparently intended by the Legislature in that particular section. I wish to read one or two extracts from decisions recently made which indicate the attitude of the courts toward the Practice Act. HISTORICAL OUTLIKE. / In Stehli Silks Corp. v. Kleinberg, 200 App. Div. 16, decided by the Appellate Division, First Department, in February 1922, in the course of an opinion granting the plaintiff leave to serve an amended complaint and directing that the case should retain its place upon the calendar, it was said : "In order to give the Civil Practice Act the effect which its passage was intended to secure, it must be applied in a broad and liberal spirit, and its provisions must not be restricted by a forced or narrow interpretation, based on the language of former sections in the Code of Civil Procedure, which have been totally superseded by the later legislation." In 137 East 66th Street, Inc. v. Lawrence, Bijur, J., sitting at Special Term, Part One of the Supreme Court, New York County (N. Y. L. J. of April 19, 1922), said: "Under a liberal interpretation of the provisions of the sections of the Civil Practice Act heretofore quoted I am inclined to believe that the form of the complaint is warranted by Section 211 because in a broad sense and according to the English precedents the claims of the plaintiff have arisen out of the same transaction or series of transactions and do raise common questions of fact and law. In this aspect I am considering the causes of action as the pleader intends them to be understood, and not weighing their intrinsic sufficiency." In Reilly v. Baldwin Locomotive Works, Wagner, J., sitting at Special Term, Part One of the Supreme Court, New York County (N. Y. L. J., Dec. 23, 1921), said, speaking of the Practice Act : "Its progressive rules of procedure should convince even the most incredulous that the administration of justice is more con- cerned with the eliciting of truth than adherence to technical procedure. ' ' Further illustrations might be multiplied almost indefinitely, but probably the most severe test to which the courts have been put in the matter of liberal con- struction relates to Section 1569 of the Civil Practice 8 CIVIL PRACTICE ACT LECTUBES. Act, which purports to classify those cases to which the provisions of the Civil Practice Act are applicable and those cases to which the provisions of the Code of Civil Procedure are applicable. In general, the scheme of this and the immediately preceding section is that as to all actions commenced on or after October 1st, 1921, the provisions of the Civil Practice Act shall be applicable, and that as to all actions begun prior to October 1st, 1921, the provisions of the Code of Civil Procedure shall be applicable. Section 1569 then continues to provide, "except that the court or judge may apply thereto (i. e., actions begun prior to October 1st, 1921), in the interest of justice, any remedial provision of this Act not inconsistent with the proceed- ings theretofore had or taken in such action or special proceeding. ' ' A particular situation arose almost immediately after the first of October 1921, which, as I have said, put the courts to the acid test in the matter of liberal construc- tion. The portion of the Civil Practice Act relating to depositions, which will be discussed in considerable detail a little later on in this course, sets forth an entirely new system for examinations before trial. Briefly, the system is merely to serve a notice on the attorney for the other side stating that the examina- tion is desired to be taken at a certain time and place and it is then incumbent upon the other side, if he so desires, to make a motion to vacate the notice, thus shifting the burden upon the person making the motion to vacate. In an action begun prior to October 1, 1921 , one of the parties served such a notice, without having previously obtained any permission from any court or judge to do so. A motion was promptly made to strike out the notice as unauthorized upon the following- grounds : HISTORICAL OUTLINE. V (1) That as the action was begun prior to October 1, 1921, the method of taking the examination before trial pursuant to notice could only be available, if at all, after express permission from the court or judge first obtained, and (2) That the provisions concerning examinations before trial were not remedial and therefore not available in actions begun prior to the time the Practice Act took effect. It must be admitted that the words ' ' except that the court or judge may apply thereto" were easily suscep- tible of the interpretation placed upon them by the party moving to vacate the notice. It was very prop- erly held, however, Mr. Justice Squiers blazing the way, in a decision at Special Term, Part One of the Supreme Court, Kings County, which appeared in the New York Law Journal on October 21, 1921, that Sec- tion 1569 did not state when the court or judge might apply tho provision nor what court or judge should apply it, and that he would then and there, upon the hearing of the motion to vacate the notice, apply the provision of the Practice Act to the pending cause, and he denied the motion. This case, Buehler v. Bush, was affirmed by the Appellate Division of the Second Department, 200 App. Div. 206, saying: ' ' The intent and purpose of the Civil Practice Act is to remove from proceedings of this character all procedural trammels and to permit examinations of adverse parties with as few restrictions as possible." A similar decision was reached by the Appellate Division of the Fourth Department in MacDonald v. Hamilton B. Wills & Co., 199 App. Div. 203. In the course of this decision the court discussed, at some length, the meaning of the words "any remedial pro- vision of this Act" as contained in Section 1569, and the following broad and liberal interpretation was announced : 1U CIVIL PRACTICE ACT LECTURES. "I think that the words 'any remedial provision of this Act' include any provision contained in the Act which was enacted for the purpose of simplifying the procedure to be followed in enforcing rights and redressing wrongs and which is intended to overcome defects in the procedure as it existed under the Code o' Civil Procedure." Of course, the effect of the decision in the MacDonald case was to hold that the courts might apply to actions begun prior to October 1st, 1921, any provision of the Practice Act whatsoever in the interests of substantial justice. While apparently going very far, it is difficult to see how the word remedial could be given any more re- stricted interpretation. It might have been simpler, however, for the court to merely say that the word remedial was used in the sense of a provision of adjec- tive law as distinct from a provision of substantive law. Adopting this simple test, the result would have been that any provision of the Civil Practice Act relat- ing to adjective law might in the discretion of the court or judge be applied in an action pending prior to October 1, 1921, when not inconsistent with any pro- ceedings theretofore had in that action. While it was objected by some that this interpretation covered prac- tically every new provision in the Civil Practice Act, there appears to be no good reason why it should be rejected on that score alone. On the matter of the examination of parties before trial pursuant to notice in actions begun prior to Octo- ber 1, 1921, it is interesting to note that the Special Term decisions in New York County are in accord with the decisions of the Appellate Divisions in the Second and Fourth Departments above mentioned (Coghlan v. Jenkins, Sup. Court, N. Y. County, Spec. Term, Part I, Cohalan, J., New York Law Journal, May 6, 1922 ; ORGANIZATION OF COURTS. 11 Strasch v. Rosenblatt et al., Sup. Court, N. Y. County, Spec. Term, Part I, Giegerich, J., New York Law Journal, Jan. 12, 1922). Organisation of Courts. It is a significant fact that the Civil Practice Act preserves intact the organization of the various courts throughout the State and does not vary their jurisdiction, nor in any sense change the normal course of the ordinary civil action or special proceed- ing. It is true that there is now a separate Surrogate 's Court Act, a separate New York City Court Act, and a separate Justices ' Court Act, but these separate acts are practically mere reprints of the portions of the Code of Civil Procedure formerly relating to these special courts. This is particularly true with respect to the Surrogates' Courts and the City Court of New York City. Actions are still begun as before by the service of a summons; the pleadings as heretofore consist of a complaint, answer and in the event that the answer contains a counterclaim or a special motion is made to compel a reply to an affirmative defense in an answer, then also a reply. Demurrers have been abolished, however, and motions substituted in lieu thereof. These motions will, of course, be discussed in considerable detail later in this course. While on the matter of jurisdiction, there is one peculiar feature of the Practice Act which has been the subject of some discussion and which it may be well to mention. Under the Code, where the plain- tiff's recovery was less than $50.00, the rule was that in contract actions, the defendant, in such event, would get a full bill of costs, and in tort actions the plaintiff's 12 CIVIL PRACTICE ACT LECTURES. costs could not exceed his damages. It is very evident that the committee which prepared and submitted the Practice Act did not intend any change in the law in this particular. By a curious slip in the preparation of Section 1475 of the Practice Act, however, an oppor- tunity was offered to contend that in an action on con- tract in the Supreme Court, where the plaintiff'? recovery was less than $50.00, neither party should get costs. Turning to Section 1475 we see that it reads, "the defendant is entitled to costs, of course, upon the rendering of final judgment in an action specified in the last preceding section, unless the plaintiff is entitled to costs as therein prescribed * * * ." This lan- guage was taken directly from former Section 3229 of the Code and the words "last preceding Section" of course referred to Code Section 3228. Section 1474, however, which as to Section 1475 is now the "last pre- ceding section," does not in any sense enumerate the classes of actions heretofore enumerated in Code Sec- tion 3228, but rather relates to the limitation of the plaintiff's costs in certain actions in New York, Kings, Rensselaer, Bronx, Queens, and Erie Counties. The result was that a literal reading of Section 1472, relat- ing to actions where the plaintiff recovers less than $50.00, merely deprived the plaintiff of costs, and there is no section affirmatively awarding said costs to the defendant. Fortunately Section 1475 was amended by the Legis- lature by Chapter 92 of the Laws of 1922, so as to eliminate the words "the last preceding section" and substitute in lieu thereof the words "Sections 1470 to 1473."' This amendment took effect on March 7th, 1922, and it has already been judicially determined, although only by dictum, that in an action on contract. SUMMONS. 13 where the plaintiff's recovery was less than $50.00, the defendant is entitled to full costs as a matter of course (Fisher v. Chas. H. Van Aken Co., Inc., Special Term, Part 1, New York City Court, Callahan, J., N. Y. L. J., May 3, 1922). Summons and Service Thereof. For some reason which is not entirely clear the Con- vention to consider and adopt rules of civil practice included in Rule 10 a provision that no papers should be received by the Clerk for filing nor should the court or judge hear any application thereon, except where the papers are "of the usual legal cap size." This provision, of course, excludes such forms as sum- monses, notices of trial, notices of appearance, and so on, as they were customarily printed by law station- ers prior to October 1, 1921, and I am informed that a great deal of trouble and embarrassment has been caused in New York County and in several other counties by the insistence by the Clerk that lawyer? comply with Rule 10 in this respect. In other parts of the State apparently the rule is being disregarded. In order to comply with this rule, it is necessary either to have the summons typewritten out in full on a sheet of the usual legal cap size or to paste one of the printed summonses, as I am informed a number of lawyers have already done, upon ordinary legal cap paper properly endorsed. This rule should, it seems to me, be amended. Another feature of Rule 10 with reference to legal cap paper which may as well be mentioned here is that it was the custom of lawyers to file proposed cases on appeal tentatively printed on paper of the size re- quired to be filed in the Appellate Division, so as to 14 CIVIL PRACTICE ACT LECTURES. save the trouble of separately preparing a proposed case and then later printing the case as finally settled. Such a printed proposed case would not comply with Eule 10. In this connection, also, it is well to bear in mind Eule 235, which provides for the size of the paper to be used in connection with printed records on appeal and briefs and all other papers furnished in the Appel- late Division. Apparently the Convention did not have in mind the circumstance that the occasion might arise, whether by way of remittitur or otherwise, to file with the various county clerks papers used in some other connection in the Appellate Division. In this respect apparently Rule 10 and Rule 235 are in partial conflict. There is, as most of us are already aware, a new form of summons as provided in Rule 45, and this new form has given - rise to a considerable number of con- flicting decisions which must be discussed in some detail. The only change is the addition of the words "or, if the complaint is not served with this summons, to serve a notice of appearance." This change was not made because absolutely necessary, nor because there was any intent to change substantially the effect of the summons. The change is merely by Avay of clarification so that a layman upon receiving a sum- mons, when served without a complaint thereto attached, might thoroughly understand that he was in that instance, and in that instance alone, required to appear, in order to prevent a default. In other words, the defendant still has twenty days to appear or answer, but he is plainly informed in the new form of summons that ho is required to answer if the complaint is served with the summons, and if the complaint is SUMMONS. 15 not served with the summons, he is required to appear. As was inevitable, a large number of summonses in the old form have been served since October 1, 1921, either due to the failure of the attorneys for the plain- tiffs in these actions to realize that the change in the form of the summons has been made, or as is more likely, due to the existence in the various law offices of a batch of the old printed forms of summonses which were carelessly used. The question thus arises as to what action the courts should take where the defendant moves to set aside the service of a summons, basing such motion upon the fact that the old form was used. There are two possible cases: (1) where the summons is served alone and unaccompanied by a complaint, and (2) where the sum- mons is served with the complaint. My own opinion in the matter is that if the summons is served together with a complaint, the defect is one which by the express mandate of Section 105 of the Civil Practice Act the courts must disregard, as it is perfectly obvious that no substantial right of the defendant is in any way prejudiced. "Where the summons is served alone, it seems to me that under a long line of decisions of the Court of Appeals, of which Gribbon v. Freel, 93 N. T. 93, may be regarded as the leading case, this defect is a mere irregularity and not a jurisdictional defect, and there- fore the defendant is even in this case not entitled to a dismissal of the action and an order setting aside the service of the summons. The situation seems so clear both in view of the authorities and as a matter of plain common sense that it is difficult to see how any court could under any circumstances feel justified in dismissing the action because the old form summons 16 CIVIL PRACTICE ACT LECTURES. was used. If the defendant claims that he was misled by the use of the old form, and it appears that judg- ment has been entered against him because of his fail- ure to appear, then I suppose he would be plainly enti- tled to have the judgment set aside and an opportunity given to him to appear and demand a copy of the com- plaint and in due course defend the action. Where by appearing in court and moving to set aside the service of the summons the defendant demonstrates very plainly that he has not been misled by the use of the old form of summons, I should think the courts should deny the motion with costs. Now let us briefly examine the authorities on the subject which are very strangely in conflict. The first decision made after October 1, 1921, on this point is Kenngott v. Kenngott, 190 N. Y. Supp. 282. That was a case decided by Mr. Justice Taylor, at Special Term, in Cattaraugus County. The summons and complaint were served together, but in spite of this fact Mr. Jus- tice Taylor granted the motion to set aside service of the summons and dismissed the action, holding that the defect was a jurisdictional one. This decision seems clearly unsound. The next decision was Siccardi v. Ajello, 117 Misc. 118, decided by Mr. Justice Benedict at Special Term, Part I of the Supreme Court, Kings County, on Novem- ber 19, 1921. The facts were the same as in the Kenn- gott case, and Mr. Justice Benedict properly held that the defect in no sense misled or prejudiced the defend- ant, and he denied the motion to set aside the service of the summons "without costs." He added by way of dictum, however, "if the complaint had not accom- panied the summons, I should have to hold differently" (See also American Discount Corp'n v. Moore, City SUMMONS. 17 Court of N. Y. City, Spec. Term, Part I, Meyer, J., N. Y. L. J., Nov. 4, 1921). Finally, in Schack v. Bryan, 118 Misc. 90, Mr. Justice Guy, at Special Term, Part I of the Supreme Court, New York County, decided a case where the old form summons had been served alone. The defendant made a motion to set aside service of the summons, claim- ing that the defect was a jurisdictional one. The attorney for the plaintiff, however, was foresighted enough to make application under Section 105 of the Civil Practice Act for permission to amend his sum- mons, and the two motions came on for argument together. Mr. Justice Guy held that the plaintiff's motion to amend the summons should be granted and the defendant's motion to set aside service of the sum- mons denied "with $10.00 costs to the attorneys for the defendant." This decision of Mr. Justice Guy seems in exact accordance with the provisions of the Civil Practice Act and may be paraphrased as follows : The use of the old form summons, even if served alone and unac- companied by the complaint, is a mere irregularity, not a jurisdictional defect ; the use of such old form, how- ever, may be prejudicial to the defendant and therefore in such a case the defect may not be disregarded; it is, however, clearly a defect which may be corrected or supplied as provided in Section 105 "in the discretion of the court, with or without terms." One other decision should perhaps be referred to. In Salzman v. Knobel, Mr. Justice Finelite, at Special Term, Part I, of the City Court of New York City (N. Y. L. J., March 11, 1922), granted a motion to set aside service of a summons where the old form had been used unaccompanied by a complaint. He held the summons 2 18 CIVIL PEACTICE ACT LECTURES. to be a nullity following the dictum of Mr. Justice Benedict in Siccardi v. Ajello, supra. This dictum of Mr. Justice Benedict and the decision of Mr. Justice Finelite appear to be erroneous on principle, and the true rule to be stated by Mr. Justice Guy in Schack v. Bryan. Before leaving this subject, I should like to add a word about the decision by Mr. Justice Guy in Schack v. Bryan, supra. In the course of his brief opinion he says: "Where a summons in the old form is served, without a com- plaint, since the Civil Practice Act took effect, and there is neither a waiver nor a motion to amend the summons, it should be set aside on motion." While technically accurate in every respect the inti- mation contained in this statement is that it is up to the plaintiff to make a motion under Section 105 to amend his defective summons, and that if no such mo- tion is made, the action should be dismissed. This seems to me to be a very curious way of going about the matter. In so plain a situation as this, I believe it should be incumbent upon the justice sitting at Special Term, Part I, to himself suggest to the plain- tiff's attorney upon the hearing of the motion to set aside the service of the summons, that the court would entertain a motion to amend the summons and thus dispose of the matter in an expeditious and just manner. No doubt, had the plaintiff's attorney, either through ignorance or neglect failed to make such an application in Schack v. Bryan, Mr. Justice Guy would have made such a suggestion to him upon the argument of the motion to set aside the service of the summons. Many of the judges, however, feel that the duty of making such motions rests exclusively with SUMMONS. 19 the attorneys, who may or may not be competent ; and it is believed that the interests of justice will be served to a much greater degree if the judges will regard themselves less as umpires or referees deciding isolated questions submitted by the litigants and more as judges vested with full powers to dispose of the controversy and do justice between the parties. This, I am in- formed has been the practice for years in England, and, particularly since the adoption of the Civil Prac- tice Act and the Rules of Civil Practice in New York, there has been a notable disposition on the part of the courts here, as far as possible, to dispose of the con- troversy whatever it may be and not merely decide technical matter submitted on a particular motion (See Chersonshy v. Scheflin, Supreme Court, Kings County, Spec. Term, Part I, MacCrate, J., N. Y. L. J., Jan. 19, 1922). It is difficult to overestimate the real service which could be rendered by the judges if they could all be induced in connection with practice motions coming on for hearing at the Special Term for the disposition of contested motions to insist, wherever possible, upon disposing of the controversy presented by the motion. In spite of the very plain efforts in this direction which are being made on many of the judges, it is quite sur- prising to see the number of motions which are denied from day to day without prejudice to their renewal at a later date upon a new set of motion papers which shall supply some defect in the motion as already made, and instances where motions are denied because the proper relief has not been prayed for. While perhaps techni- cally accurate, such decisions only serve to congest the Special Term calendars and to impose additional bur- dens upon the lawyers and litigants. Fortunately the Civil Practice Act gives to the judges sitting at Special 20 CIVIL PRACTICE ACT LECTURES. Term ample powers to require the filing of additional papers or the making of an additional motion when necessary, so that the application which originally comes up for hearing may be finally disposed of. There are one or two recent illustrations which are worthy of mention. In Lowther v. New York Life Insurance Co., a mo- tion for summary judgment under Rule 113 was argued before Mr. Justice Platzek at Special Term, Part VI, of the Supreme Court, New York County (N. Y. L. J., March 21, 1922). The motion papers did not ask for any relief under Rule 112, but solely for an order granting to the plaintiff summary judgment under Rule 113. Upon glancing at the pleadings Mr. Justice Platzek was convinced that the plaintiff was entitled to judgment on the pleadings under Rule 112 and ac- cordingly, "under the prayer for other relief" con- tained in the notice of motion, an order was entered granting to the plaintiff judgment on the pleadings with leave to the defendant to serve an amended answer within ten days after service of the order. In Midower v. MacDermott, a motion to preclude the plaintiff from giving any evidence with reference to the particulars directed to be furnished in the bill of particulars as required by a prior order come on for argument before Mr. Justice Giegerich at Special Term, Part I, of the Supreme Court, New York County (N. Y. L. J., January 10, 1922). As the technical prac- tice in such cases required the plaintiff to make a mo- tion to be relieved of his default in failing to serve the bill of particulars as directed, and as no such motion had been made, Mr. Justice Giegerich pointed out that on the papers which were then before him he would be required to grant the motion to preclude, but he sug- SUMMONS. 21 gested at the end of his brief opinion that the plaintiff make a motion for an order relieving her of her de- fault in failing to obey the order directing the service of a bill of particulars, and in order to enable the plaintiff to make such a motion he directed the motion for an order of preclusion to be adjourned until the following Friday, at which time both matters could come on for hearing and the entire question be finally disposed of. Turning now to another subject, we find that the provision formerly contained in Section 1245a of the Code requiring all summonses and pleadings in actions pending in New York and Bronx Counties to be filed, has been repealed and the practice is now made uniform throughout the State. The matter is covered by Sec- tion 100 of the Civil Practice Act which provides : 'Tiling papers in an action. The summons and each pleading in an action must be filed with the clerk by the party in whose behalf it is served 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. ' ' I may say that I find very little comfort in Section 100, which reminds me of an experience I had a number of years ago in connection with Section 824 of the Code which contained substantially the same provi- sions as are now in Section 100 of the Civil Practice Act. I had begun an action against a defendant who was the maker of a promissory note and I held in my possession letters from him admitting the indebtedness and a copy of an affidavit, the original of which he had filed in a certain bankruptcy proceeding where this obligation was set forth as a valid and existing one. To my surprise a verified answer containing a general 22 CIVIL PRACTICE ACT LECTURES. denial was served in due course and I noticed that the original answer was not filed in the New York County Clerk's Office as required by Section 1245a of the Code. As no motion for summary judgment was available under the Code and as I thought I should prob- ably desire to prosecute the defendant for perjury, I served a notice, pursuant to Section 824 of the Code, requiring the defendant to file the answer. The attorney for the defendant paid no attention to this notice and in due course and following the procedure outlined in Section 824 of the Code, which is now repeated verbatim in Section 100 of the Civil Practice Act, I made a motion for an order direct- ing that the ' ' pleading be deemed abandoned. ' ' On the return day, counsel for the defendant appeared. He said he was very sorry that he had not filed the answer, but that he had it in court and was ready to file it forthwith. I argued at some length that the case was one where the defendant really should not be entitled to defend in any event and that he had flatly refused to obey the notice served pursuant to law and I claimed the penalty prescribed. The court, however, felt that the penalty was a harsh one and so my motion was denied without costs, and the answer was finally filed. This illustrates the benefit which may be derived from Section 100 of the Civil Practice Act. It is no doubt a desirable thing to have the practice uniform throughout the State ; but it has always seemed to me that the rule contained in former Section 1245a of the Code requiring all summonses and pleadings to be filed promptly after their service was a very salutary and necessary one. The requirement that a delinquent party apply to the court for an order permitting the filing nunc pro tunc was a sufficient penalty to cause SUMMONS. 23 everyone to file their summonses and pleadings as a matter of course, which meant that litigants and parties interested could always find upon the files of the County Clerk's Office the summons and the plead- ings in all pending actions. With reference to the notices required to be placed upon summonses in matrimonial actions no change has been made and this is equally true about the notices permitted to be attached to summonses in actions for the recovery of liquidated claims where it is desired to enter judgment by default before the Clerk without the necessity of preparing a complaint. These provisions are now contained in Eules 46 and 47. The provision requiring a notice on the summons where the action is brought to recover a penalty has been repealed as to the Supreme Court and is not now contained in the Civil Practice Act at all. It is in- cluded, however, as Section 49 of the Justices' Court Act, no doubt because such actions were normally brought in the Justices ' Courts and it was not thought desirable to have any provision with reference thereto in the Civil Practice Act. There are a number of other changes with reference to the summons and the service thereof which are not in themselves very vital, but which it is certainly im- portant to note. As considerable difficulty had been experienced in the matter of obtaining jurisdiction over the people of the State of New York, it was be- lieved that the provisions relating to the service of a summons upon the defendant in such a case should be liberalized. Accordingly the following new sentence was added to Section 221 : "The delivery of a copy of the summons to a deputy attorney- general in person at the office of the attorney-general shall be equivalent to personal service on the attorney-general." 24 CIVIL PRACTICE ACT LECTURES. It will be observed that the service upon a deputy attorney-general may only be made "at the office of the attorney-general" and it will probably now no longer be necessary to follow the method so commonly adopted under the Code of mailing a copy of the sum- mons and complaint to the office of the attorney-general at Albany requesting a notice of appearance. The law with reference to the personal service of a summons upon an infant under the age of fourteen years has been changed, and the requirement that a copy of the summons be also delivered in behalf of the infant to a person designated in an order, is now made discretionary. It seems entirely unnecessary to re- quire such an order to be made and it will be recalled that the provision making the service upon a person so designated absolutely essential was added to Sec- tion 426 of the Code in 1913 and caused a great deal of adverse comment. Another very desirable change has been made in reference to the personal service of a summons upon a person judicially declared to be incompetent. The Code required the service to be made personally upon both the Committee and the incompetent defendant and ser- vice upon the incompetent defendant might only be dispensed with upon proof being made that such service would tend to aggravate the malady of the defendant or to lessen the probability of his recovery. It was quite manifest that in many cases it was very difficult to make such proof, with the result that plaintiffs were frequently compelled to go to considerable expense to make personal service upon insane persons whose dis- order was such that the service of a summons upon them was the merest formality and served no useful purpose. Accordingly, Section 225 of the Civil Prat- SUMMONS. 2.) tice Act noAv provides that the court may make an order dispensing with the delivery of a summons to the in- competent person in any case in the discretion of the court. I suppose that proof that the incompetent per- son had been violently insane for many years would suffice to warrant the court in its discretion in making an order dispensing with the service upon the incom- petent person himself, particularly where the incom- petent was incarcerated in some asylum located in a county distant from the county where the action was "brought and where the plaintiff's attorney resided. There is a further change with reference to personal service of a summons upon a foreign corporation which greatly tends to clarify the provisions of the Practice Act on this point, and that is the elimination, in case of serving a cashier, director or managing agent of a foreign corporation, of proof that the corporation had property in the state or that the cause of action arose therein. It is now provided in Section 229, sub- division 3, that service may be made upon a cashier, director or managing agent of a foreign corporation upon merely showing that service may not be made upon one of the general officers of the corporation, or the person designated pursuant to Section 16 of the General Corporation Law, within the state with due diligence. The importance of this change is not entirely ap- parent upon the surface, but it really amounts to a sub- stantial clarification of the law. In connection with my work with law students for the past ten years, I have found that the old provision produced consider- able confusion. Students persistently asked what the purpose was of requiring proof that the cause of ac- tion arose in the state or that the corporation had 26 CIVIL PRACTICE ACT LECTURES. property in the state. This was a difficult question to answer because it was very plain that the section of the Code containing this requirement related in no sense to the jurisdiction of the court over the subject of the action, but only to the question of personal jurisdiction and the Supreme Court of the United States in Pennoyer v. Neff, 95 U. S. 714, has very plainly stated the law to be that in the matter of juris- diction the mere existence generally of property of the defendant located somewhere within the state, where such property had not been already levied upon pur- suant to attachment, was entirely immaterial. It was accordingly obvious that the requirement of the Code that proof be made that there was property of the de- fendant within the state or that the cause of action arose therein, served no useful purpose whatever and merely tended to hamper the courts in obtaining juris- diction over foreign corporations, contrary to the established policy of all state legislatures. Indeed, the only explanation of the origin of this curious require- ment of the Code was that it was placed in the original Code of Procedure at a time when the law with refer- ence to jurisdiction over foreign corporations was in a very unsettled and undeveloped state, and as the law then stood it was supposed that it might make some difference in the matter of jurisdiction whether the corporation had property in the state or the cause of action arose therein. Turning now to the subject of substituted service, we find that the Legislature has made a very substan- tial change in the enumeration of those instances in which the plaintiff is entitled to an order for substi- tuted service. In one sense the rules as to substituted service remain the same, namely, that such an order SUMMONS. 27 may only be obtained where the defendant is a resident of the state or a domestic corporation and also in the respect that the judgment obtained after substituted service remains as completely effective for all pur- poses as a judgment obtained after personal service of the summons. The Code, however, only permitted the making of an order for substituted service of the sum- mons where proof was made that the place of sojourn of the defendant could not be ascertained, or, if within the state, that the defendant avoided service. These provisions were manifestly inadequate as there were many instances in which a resident defendant, although absent from the state for a more or less protracted period, could prevent substituted service of the sum- mons by merely leaving with some agent a statement of the place of his sojourn. Furthermore, it has been the common experience of attorneys in the past that proof that a defendant is avoiding service is not always easy to make, even though repeated efforts have been made to serve the summons personally and a strong suspicion may exist that the defendant is deliberately avoiding service. The entire situation is adequately covered by Section 230 of the Civil Practice Act which provides that an order for substituted service of the summons may be issued "upon satisfactory proof that the plaintiff has been or will be unable, with due diligence, to make per- sonal service of the summons within the state." This is a much more sensible provision than that contained in the Code, is entirely fair to resident de- fendants who may not be readily available for personal service and is on the whole a very salutary provision. There are one or two observations, however, that should be made in this connection. In the first place, 28 CIVIL PRACTICE ACT LECTURES. proof that the process server merely went to the de- fendant's residence and place of business and asked for him and was told that he was not in at the time, even though this inquiry be repeated on various occasions, will not of itself suffice. It is as essential today, as it was under the Code, to show that the process server informed the persons with whom he spoke at the de- fendant's residence and at his place of business of the fact that he wished to see the defendant for the pur- pose of serving a summons upon him. In the second place, there is a situation likely to arise very frequently which is illustrated by the facts of a recent case. The defendant, a resident of New York, went to Cuba for a brief, but indefinite sojourn, by way of vacation. Dur- ing his absence an order for the substituted service of a summons on the defendant was obtained merely upon the ground that, as the defendant was in Cuba, it was quite apparent that personal service of the summons upon him could not be made with due diligence within the state. The motion to set aside the order for sub- stituted service was denied by Wendel, J., at Special Term, Part I, of the City Court of New York City in Kelly-Hughes Co., Inc. v. Jaffe (N. Y. L. J., Dec. 14, 1921), on the ground that strict compliance had been made with the requirements of Section 230. While this seems like an extreme case, the decision is clearly sound and it is probable that a similar result would be reached even if the defendant's sojourn in Cuba or any other foreign country was for a short and definite period instead of an indefinite period as in the Kelly-Hughes Co., Inc. case. On the other hand, Section 230 is to be given a reasonable interpretation and if it appears that the defendant is merely out of the state for a single day attending a football game at Princeton or SUMMONS. 29 New Haven, or spending a week end at some summer resort, an order for substituted service during such absence would not appear to be authorized bv Section 230. There is also a change in the manner of making sub- stituted service of the summons. Section 231 of the Civil Practice Act now provides that in the event that admittance cannot be obtained at the place designated in the order, a copy of the order and of the summons must be mailed to the defendant by depositing the same "in a post office." The old requirement was that the mailing be made by depositing the same "in a post office at the place where he resides, or where said office, place of business or residence is located." As to service by publication a number of slight changes have been made, some of which are entirely new and some of which merely serve the purpose of clarification. One or two ambiguities, however, still remain. Subdivision 4 of Section 232 is entirely new and pro- vides for service by publication upon an infant or in- competent defendant, whether a resident or non-resi- dent of the state, where complete personal service of the summons cannot be made within the state after due diligence. This subdivision eliminates what may prop- erly be characterized as a defect in the law as it existed under the Code. The last paragraph of Section 232 merely serves to supplement said Subdivision 4. Rule 51 clarifies an ambiguity which existed under the Code, but which had already been disposed of by several court decisions. It will be recalled that there was considerable doubt under the Code as to whether six publications of the summons would suffice or whether seven publications were required. This am- 30 CIVIL PKACTICE ACT LECTURES. biguity was due to the fact that Section 440 provided that the publication should be "not less than once a week for six successive weeks," whereas, Section 441 provided that ' ' service by publication is complete upon the date of the last publication." It was perfectly plain that if the six publications were made on six successive Mondays, for example, the last publication would be only thirty-five days from the time of the first publication. As this was less than six weeks, or forty- two days, it was claimed that the seventh publication was required. Although the Court of Appeals decided to the contrary in Market National Bank v. Pacific Na- tional Bank, 89 N. T. 397, which held that only six publications were required, and although this decision by the Court of Appeals was followed by a number of Appellate Division cases (Brooks v. Brooks, 190 App. Div. 564), I understand that some of the title com- panies insisted that seven publications were necessary and the matter was in an unsatisfactory state as the Code sections on the matter existed. This ambiguity is now entirely cleared up by Rule 51 which provides : "For the purpose of reckoning the time within which the defendant must appear or answer, service by publication is com- plete on the forty-second day after the date of first publication." This clearly requires only six publications. There is, however, quite a serious ambiguity which has inadvertently been inserted into the law by the last sentence of this Rule 51. This sentence reads : "Service without the state in lieu of publication is complete ten days after proof thereof is filed." This provision is plain enough where there has been an order for service by publication and where the sum- mons is served on the defendant personally outside of SUMMONS. 31 the state "in lieu of publication." In certain cases, however, such as foreclosure actions, it is specifically provided Tby Section 235 of the Civil Practice Act, which is substantially a repetition of Subdivision 3 of Section 443 of the Code, that personal service of the summons in such cases may be made without the state with the same force and effect as though the summons had been served by publication, although this may be done without obtaining any order for publication. On the question of when such service was complete, Sec- tion 443 of the Code was very plain because Subdivi- sion 4 thereof provided "service without the state is complete in ten days after proof thereof is filed ; ' ' and it required no argument to demonstrate that this pro- vision was equally applicable to service without the state without an order as to service without the state in lieu of publication, pursuant to an order. The result is that by including the words "in lieu of publication" in Rule 51, there is now no provision whatever in the Civil Practice Act or in the Rules of Civil Practice providing for the time when service is complete where personal service of the summons is made outside of the state without an order. This very matter has been already judicially deter- mined, however, in the recent case of Sheaf er v. Ver- mont Hygeia Ice Co., where the opinion was rendered by Mr. Justice McAvoy at Special Term, Part VI, of the Supreme Court, New York County (N. T. L. J., May 2, 1922). Mr. Justice McAvoy held: "The omission of a direction from both the Act and the Rules with respect to proof of service without the state without an order that it shall be deemed complete ten days after proof of service is filed, makes it evident that proof of service of a summons without the state without an order is deemed complete upon actual service of the summons outside the state." 32 CIVIL PRACTICE ACT LECTURES. There is one last matter that should be referred to before we leave the matter of service of the summons. There were, of course, and, even since the Code of Procedure, have been three normal methods of service of the summons : personal service, substituted service and service by publication. By a curious inadvertence there were two almost identical instances in the Code of Civil Procedure which related to entirely distinct subject matters where for some hidden reason, or per- haps for no reason at all, only two of these methods were enumerated. In Section 399 of the Code with reference to the Statute of Limitations, it was provided in substance that when the summons was delivered to the sheriff of the county where the defendant resided the effect thereof was to give the plaintiff an additional sixty days after the expiration of the time limited for the actual commencement of the action to serve per- sonally the same upon the defendant or to make the first publication of the summons against the defendant pursuant to an order for service by publication. There is no reference in Code Section 399 to the method of substituted service. Curiously enough we find an almost identical situa- tion under Section 1774 of the Code which contains cer- tain regulations respecting the entry of judgment in certain matrimonial actions. It was there provided that a final judgment should not be rendered in favor of the plaintiff upon the defendant's default unless the summons had been personally served upon the defend- ant or service made by publication as required by law. Here again we find the significant omission of any reference to the method of substituted service. It has always been my personal belief that the omis- sion in both instances was entirely inadvertent as I SUMMONS. 33 can conceive of no valid reason of logic or policy Avhy the Legislature should intentionally omit a method of service which for all purposes would he deemed at least the equal to, if not the superior to, service by publica- tion. The decisions under these sections of the Code of Civil Procedure were also in apparent conflict. The Court of Appeals held with respect to Code Section 399 that the omission to specify the method of substi- tuted service was inadvertent and that that method was just as available within the sixty day period as was personal service or service by publication {Clare v. Lockard, 122 N. Y. 263). On the other hand, the Appellate Division of the Fourth Department in Purvis v. Purvis, 167 App. Div. 717, held, with reference to a matrimonial action, that a judgment by default could not be entered against the defendant where the sum- mons had been served by substituted service. Here it would seem there was a very excellent oppor- tunity for the Joint Committee in preparing the Civil Practice Act, and for the Legislature, to clarify the situation and make the rule at least uniform and clear. "We find that with respect to service within the sixty day period after the delivery of the summons to the sheriff of the county where the defendant re- sided, in order to stop the running of the Statute of Limitations, Section 17 of the Civil Practice Act now enumerates all three methods of service, thus bringing the letter of the law in accord with the decision of the Court of Appeals in Clare v. Lockard, 122 N. T. 263. Section 1167 of the Civil Practice Act, however, merely repeats the same language as had previously been used in Section 1774 of the Code. As a result the situation seems to be anything but 3 34 CIVIL PRACTICE ACT LECTURES. clear ; and if the decision of Purvis v. Purvis, 167 App. Div. 717, is to be deemed to state accurately the law with respect to the entry of judgment by default in matrimonial actions, the law should be changed by the Legislature at an early date so as to make available in matrimonial actions, as well as others, all three methods of service of the summons. LECTUEE II. Mistakes, Defects and Irregularities. Before proceeding to consider the remaining changes accomplished by the Civil Practice Act and the Enles of Civil Practice in regard to the normal procedure during the course of an ordinary civil action, it is necessary that we at this time examine in some detail the new provisions of the Civil Practice Act with refer- ence to mistakes, defects and irregularities because these provisions are applicable to all actions alike and may come into play at any stage of any action, special proceeding or appeal. The sections to which reference is made are con- tained in Article 9 of the Civil Practice Act and are Sections 105 to 112 inclusive. It is worthy of note at the outset that Section 1569 of the Civil Practice Act expressly makes all the provisions of Article 9 applic- able to actions and proceedings pending prior to October 1, 1921. Some of the provisions contained in Article 9, namely, Sections 107, 108, 109 and 112 are taken sub- stantially from the Code and they relate to omissions in taking appeals, relief against default judgments and orders, mistakes affecting judgments and the supply- ing of defects by an appellate court. The remaining sections should be separately con- sidered as they are entirely new. Section 105 is the most important of them all and this section provides : "At any stage of any action, special proceeding or appeal, a mistake, omission, irregularity or defect may be corrected or supplied, as the case may be, in the discretion of the court, with or without terms, or, if a substantial right of any party shall not 35 36 CIVIL PRACTICE ACT LECTURES. be thereby prejudiced, such mistake, omission, irregularity or defect must be disregarded. ' ' The note of the Committee with regard to this sec- tion is worthy of serious consideration as it appears by this note that Section 105 is not only intended to be considered as a new and important section, but also as containing the substance of Code Section 723, and the 8th, 9th and 10th sentences of Section 768. With reference to those provisions formerly con- tained in Code Section 723, the situation is fairly plain and accordingly motions to amend any process, plead- ing or other proceeding are to be made pursuant to Section 105. There was one provision of Section 723 of the Code, however, the entire omission of which in Section 105 of the Civil Practice Act gave rise to considerable doubt. I refer to the following sentence of Section 723 of the Code : "When amending a pleading or permitting the service of an amended or supplemental pleading in a case which is on the general calendar of issues of fact, the court may direct that the case retain the place upon such calendar which it occupied before the amendment or new pleading was allowed, and that the pro- ceedings had upon the amended or supplemental pleadings shall not affect the place of the case upon such calendar, or render necessary the service of a new notice of trial. ' ' The opinion has been expressed by a number of eminent lawyers that because of the omission to repeat this language at some place in the Civil Practice Act, the courts would now find themselves without power to permit the case to retain its place on the calendar on the granting of a motion for permission to serve an amended or supplemental pleading. Fortunately this situation has already come before the Appellate Division of the First Department in MISTAKES, DEFECTS AND IEEEGULAKITIES. 37 Stehli Silks Corporation v. Kleinberg, 200 App. Div. 16, where the opinion written by Mr. Justice Dowling vigorously states the rule of liberal construction applicable to the Civil Practice Act and holds that no specific restatement of the rule contained in Section 723 of the Code of Civil Procedure was necessary. It is hard to exaggerate the importance of this deci- sion as it means that in interpreting the broad lan- guage of Section 105 of the Civil Practice Act, the courts will not feel in any sense hampered by language appearing in any part of the old Code of Civil Pro- cedure. It means that Section 105 will be interpreted as though a part of an absolutely new statute of pro- cedure having no necessary connection with its his- torical background. This is in the interest of sub- stantial justice and should go a great ways toward quieting the fears and doubts so frequently expressed, to the effect that the Civil Practice Act would merely serve to usher in a new era of technical construction in which lawyers would be compelled not merely to familiarize themselves with the provisions of the new Practice Act, but to be also thoroughly acquainted with the Code of Civil Procedure, the Code of Procedure, the English Eules of Practice, the New Jersey Prac- tice Act and other sources from which portions of the Civil Practice Act were taken. No doubt, it will be entirely proper to call the atten- tion of the court to decisions in England and New Jersey and other jurisdictions from which specific pro- visions of the new law are taken, but the effect of the decision in Stehli Silks Corporation v. Kleinberg, is to place the Civil Practice Act upon its own feet and to impose upon the judges sitting at Special and Trial Term, the mandatory duty of interpreting the new Act 38 CIVIL PRACTICE ACT LECTURES. and every part thereof in a liberal spirit in the interest of substantial justice. A few instances illustrative of the use to which Sec- tion 105 has already been put are as follows: the amendment of a complaint at the trial, although the amendment substantially changed the cause of action (Feizi v. Second Russian Insurance Co. [App. Div. First Department], 199 App. Div. 775) ; certain defects in papers upon which order for service of the summons by publication was obtained (Commercial Union of America, Inc. v. Ipranossian, Whitaker, J., Supreme Court, Special Term, Part I, N. Y. L. J., January 10, 1922) ; defects in papers upon which order of arrest was obtained (Auditore v. Cantanzaro, Kapper, J., Supreme Court, Kings County, Special Term, Part I, N. Y. L. J., Dec. 13, 1921) ; defects in summons (Schach v. Bryan, 118 Misc. 90) ; transposition of "defendant" for "plaintiff" in notice of appeal {Wolff v. Hubert, App. Div. First Dept., 200 App. Div. 124). When it is recalled with what minute precision com- pliance was formerly required with the provisions of the Code of Civil Procedure with respect to service of the summons by publication (Whiton v. Morning Jour- nal Assn., 23 Misc. 299), the extent of the progress that has been made will be more fully realized (as to defects in publication papers, see also McCoy v. Erie Forge party desiring to take a deposition out of the state merely makes a motion for an order, the particular terms and provisions of which are to be discussed on the argument of the motion and thus disposed of. Thus Section 294 provides: "An order for the taking of testimony by deposition, under any provision of this article, or an order denying a motion to vacate a notice given pursuant to section two hundred and ninety, may prescribe terms and conditions, not inconsistent with this article. If the testimony is to be taken wholly or partly upon oral 9 130 CIVIL PRACTICE ACT LECTURES. examination, the order shall provide for notice thereof to the parties, or prospective parties, of the time and place and, in the discretion of the court, the order may fix such time and place." It is thus contemplated that the parties need not resort to the issuance of a commission and the full compliance with the somewhat cumbersome rules as to the preparation of the interrogatories, the cross- interrogatories and the settlement thereof by the court. .Where some special exigency exists the matter can be thoroughly discussed on the argument of the motion for an order directing the testimony to be taken and that order may provide such reasonable terms and con- ditions with respect to the taking of the testimony as the circumstances may seem to require. Now a word as to the taking of depositions outside of the state pursuant to notice. It is evidently con- templated by Section 294 that if one party serves a notice to take the testimony of some person outside of the state, his adversary will promptly move to va- cate or modify the notice and the order denying the motion to vacate, or granting the motion to modify the notice, may provide such terms and conditions as to the taking of the testimony as may be appropriate. If the adversary is accommodating in this respect and makes his motion to vacate, then the order thus made would no doubt fully cover the situation. But if the adversary makes no motion to vacate, it is at least a doubtful proposition as to whether or not the mere service of the notice will establish a proper basis for the taking of the testimony in a foreign state. I am afraid that the courts in California or New Jersey, for example, might be somewhat reluctant to enforce obedience to a paper such as the notice we are dis- cussing, which is merely signed by the attorney and DEPOSITIONS. 131 not in any way authenticated or certified by any official of the State of New York. It may be that the mere service of a notice will in time prove sufficient, but there are difficulties to be expected which would make it more desirable, at least at this time, to either move for an order directing the issuance of a commission or for an order directing the taking of the testimony with- out the state and imposing the terms and conditions under which such testimony is to be taken. Kule 133 provides for a motion to suppress a deposi- tion taken without the state where there is any im- proper conduct or irregularity in the taking or return of the deposition or where the attorney for either party has practiced fraud or unfair or over-reaching conduct. Eule 133 also provides : "If it appear that a resident of the state whose deposition was taken without the state could have been subpoenaed to attend the trial, his deposition may be suppressed unless he resides more than one hundred miles from the place of trial." Use of depositions at trial. Where the deposition is that of an individual adverse party it is very plain that the deposition may be used at the trial even though the party himself be personally present in court. This is apparently upon the theory that whatever is said by an individual party consti- tutes an admission and is to be received in evidence as such. Where the deposition is that of the officer of a cor- porate party, it would seem as though the rule applic- able under the Code had been preserved in Section 304 of the Civil Practice Act, to the effect that if the officer of such corporation is personally present in court, the deposition may not be read. This distinction between 132 CIVIL PRACTICE ACT LECTURES. the testimony given by individual parties and testi- mony given by officers of corporations, is apparently sound, although as a matter of policy, it would seem desirable to place both depositions upon the same basis and to make them both admissible, even though the per- son so testifying is actually in court at the time it is sought to read the deposition. The leading case on this proposition under the Code is Miners and Merchants' Bank v. Ardsley Hall Co., 113 App. Div. 194, and the reasoning of the court is that the deposition of an officer of a corporation is not the deposition of a party, but the deposition of a witness and that accordingly it did come under Section 882 of the Code which provided that the deposition, except that of a party taken at the instance of an adverse party, shall not be read in evi- dence until it has been satisfactorily proved that the witness is dead or unable to personally attend by reason of insanity, sickness or other infirmity. As the provisions of Section 882 of the Code are now repeated almost verbatim in Section 304 of the Civil Practice Act, the rule of the Miners and Merchants' Bank case would seem to be still applicable. Turning to the depositions of witnesses generally, other than parties, Section 304 very clearly provides that such depositions shall not be read in evidence "unless it appears to the satisfaction of the court that the deponent is then dead or is out of the state or at a greater distance than 100 miles from the place where the court is sitting, or that, by reason of insanity, sickness, or other infirmity, or imprisonment, he is unable to travel to and appear at the court, or that for any reason his attendance cannot be compelled by subpoena, with the exercise of reasonable diligence." This proof that the witness is not available, must be affirmatively made before the deposition can be deemed admissible at the trial. INCIDENTAL PRACTICE. 133 As the provisions with reference to depositions to be taken within the state for use without the state and the provisions for the perpetuation of testimony in real property actions are practically repeated verbatim from the Code, they will not be discussed in detail (Sections 310-321). Incidental Practice. A large number of changes have been made with reference to various phases of incidental practice and these matters will now be discussed together, although it is impossible to take them up in any strictly logical sequence. For some reason which is certainly not apparent to me, Section 236 which covers the general subject of the rights of a party who is of full age to prosecute or defend a civil action in person, has been amended so as to give the court the affirmative power to permit a party to appear to act in person in a case even though the party is already represented by an attor- ney. This is contained in the last sentence of Sec- tion 236, which reads, "If a party has an attorney in the action he cannot appear to act in person except with the consent of the court." As no such power existed under the Code, the effect of this negative statement is to create an affirmative privilege. In my judgment this change, although apparently a good one, will not work well in practice and will serve as a source of embarrassment to both the judges and to lawyers. Naturally in the vast majority of cases in which clients of ordinary intelligence are involved, the courts will not be called upon to force the attorney from the case and to permit the client to conduct the trial for himself. It is only in cases where the extent 134 CIVIL PRACTICE ACT LECTURES. of the interests involved has preyed upon the mind of the client or where either by reason of age, illness or other partial disability, the client may for some reason or for no reason desire to himself conduct the case. In such instances the interests of the client are almost inevitably bound to be damaged by the ouster of the attorney in the midst of a trial, with the result that the case may be lost to the disadvantage of the client and the lawyer as well, as the latter may be de- pending upon his charging lien to receive compensa- tion for his services. It would seem as though the remedies already avail- able to parties were amply sufficient to protect them, as the lawyer may at any time be removed without compensation where he has been negligent in the con- duct of the case, or guilty of unprofessional conduct, and, even where no such conduct can be shown, the client may as a matter of course change attorneys at any time by merely paying to the attorney who is dis- charged the reasonable value of his services to date. Let us take an illustration. Let us suppose that a lawyer is representing an old lady eighty-five years of age in a litigation of great moment to the client, who has thought of practically nothing else for five or ten years, so that while on other matters she may be en- tirely normal, still with respect to this case her mind is at least somewhat affected. As the case progresses the old lady has her own ideas as to how it should be tried and as to what documents should be put in evi- dence, what witnesses called, what questions asked, and so on. Upon a sharp difference in opinion developing between the lawyer and his aged client, she tells the judge she desires to continue the trial of the case her- self. I believe it is a great mistake to make it possible INCIDENTAL PRACTICE. 135 for the court to thus oust the attorney and permit the client to try the case in person. Perhaps the tendency of modern times lies in the direction of giving clients more ample power in con- nection with their own law suits. This is shown by an- other phase of Section 236 of the Civil Practice Act. May a client, who is plainly authorized by Section 236 to prosecute or defend a civil action in person, himself sign and issue a summons and cause an action to be started by the service thereof upon the defendant! As a matter of policy it would seem very clear that the right to issue the mandate of the court should be restricted to the officers thereof; and it was not so long ago held by Mr. Justice Cropsey at Special Term, that a layman had no power to sign and issue a summons (Jaworower v. Rovere, 98 Misc. 377, affirmed without discussion on this particular point, 177 App. Div. 740) . As a matter of logic, as well as general policy, this decision by Mr. Justice Cropsey seems to rest upon very solid foundations. The subject was one which very plainly involved two sections of the Code, namely, Section 55, relating to the right of a party to prosecute or defend an action in person (now Section 236 of the Civil Practice Act) and Section 417 of the Code relat- ing to the form of the summons (now Rule 45 of the Rules of Civil Practice). Not only does Rule 45 spe- cifically provide that the summons "must be subscribed with the name of the plaintiff's attorney," but as pointed out by Mr. Justice Cropsey in the Jaworower case, the section as originally phrased, expressly made it possible for the summons to be signed either by the plaintiff or by the plaintiff's attorney. In 1870 the forerunner of Section 417 of the Code was amended by eliminating the provision that the plaintiff might sub- 136 CIVIL PRACTICE ACT LECTURES. scribe the summons, thus indicating a very clear legis- lative intent that the summons be signed by an attor- ney and not by the plaintiff himself. It requires no argument to sustain the ruling that the section with reference to the form of the summons and the section with reference to the right of a party to prosecute or defend an action in person, must be construed together and if possible reconciled. Mr. Justice Cropsey did construe them together and reconcile them by his decision that a party might prosecute or defend an ac- tion in person except that he could not sign and issue the summons which was the mandate of the court. In spite of this cogent reasoning by Mr. Justice Crop- sey, the Appellate Division of the First Department has since held that a layman has the right to subscribe and issue the summons himself (Horter v. DeMesa, 196 App. Div. 462). It is a significant fact that the Appel- late Division does not mention the decision of Mr. Jus- tice Cropsey in the Jaworower case, nor is there any discussion whatever of the reasons upon which the decision is based. The result is probably that the decision in the Horter case and the change in Section 236 of the Civil Practice Act, to which reference has already been made, are merely indications of a modern tendency to make it possible for laymen to dis- pose of their controversies in court without the pres- ence of lawyers. Tender. There are two very important changes in the practice with respect to the making of a tender to avoid pay- ment of costs. The rule under the Code was that if the defendant made a tender by paying a certain amount of money into court, and the defendant then EXTENSIONS OP TIME. 137 won the case, the money nevertheless was the property of the plaintiff. This was "upon the theory that the title to the money passed to the plaintiff upon the de- posit thereof in court {Taylor v. Brooklyn Elevated Railroad Co., 119 N. Y. 561). It is a curious circum- stance that this peculiar and wholly unjust rule re- mained untouched and unamended in spite of efforts by a great many disinterested members of the bar to have it repealed. The result, of course, was that after the decision by the Court of Appeals in Taylor v. Brooklyn Elevated Railroad Co., 119 N. Y. 561 (de- cided in 1890), the process of making tenders under the Code gradually ceased with the result that the provi- sions of the Code in this respect did very little, if any, good. The old rule has been changed by Section 173 of the Civil Practice Act, subdivision 1 of which affirmatively provides that "if the defendant recover judgment, the money shall be paid to him." The other change concerning tenders is contained in Section 174, which is entirely new and which provides as follows: ' ' See. 174. Tender on counterclaim. A tender may be made by the plaintiff in respect to a counter- claim, in the same eases, in the same manner, and with the same effect as to the counterclaim, as in case of a tender by a defendant on account of a demand for payment in a complaint." Extensions of Time. There is a new section taken from the English Prac- tice Eules with respect to the general subject of exten- sions of time. That is Section 98 which provides as follows : "Except as otherwise expressly provided by statute, the court or a judge shall have power after the commencement of an action 138 CIVIL PRACTICE ACT LECTURES. or special proceeding to enlarge the time appointed by statute or rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms as the justice of the case may require, and any such enlargement may be ordered upon good cause shown although the application for the same is not made until after the expiration of the time appointed or allowed." In view of the provisions formerly contained in Sec- tions 781 and 783 of the Code, there does not appear to be any radical change involved in the adoption of this language taken from the English Practice Rules. It is true the language is more general and may be sup- posed to cover some cases not included in the Code provisions, but generally speaking the courts had the power even under the Code to extend time and open defaults of every character upon good cause shown and upon the imposition of proper terms. One of the few reported decisions on this point since October 1, 1921, is in the case of Wulstein v. Wulstein, decided by Mr. Justice Gannon at Special Term, Part I, of the Supreme Court, Kings County (N. Y. L. J., June 2, 1922). In that ease the interlocutory judgment was served with notice of entry on March 8, 1922, and the time of the defendant to move for a new trial was extended by stipulation to April 10. Section 552 of the Civil Practice Act provides that the motion for a new trial must be made "before the expiration of the time within which an appeal may be taken from the judgment" and Section 99 forbids any extension of the time to appeal. The defendant ex parte obtained an order further extending his time within which to move for a new trial and the plaintiff moved to vacate this order. In denying this motion Mr. Justice Gannon said: "But the time to appeal from the interlocutory judgment has not expired, no final judgment having been entered, because an appeal from the final judgment when entered 'brings up for review AMENDMENTS. 139 an interlocutory judgment * * * which necessarily affects the final judgment' (Section 580, C. P. A.). As for the claim that the order should have been made upon noticed motion, the facts which are not disputed would justify the order even if the motion were opposed. ' ' It seems to me that it is much, to be regretted that the Legislature did not follow the English rule in toto and thus include not only the power to enlarge or ex- tend time, but also the power to abridge the time for doing an act or taking a proceeding. It is a matter of common experience that on many occasions the normal period within which a party to a civil action is required to do certain acts is much too long, in view of the facts of particular cases, and the interests of justice gen- erally would seem to require that the court be given the broad general power to abridge time as well as to extend time. For instance, take an ordinary action for goods sold and delivered, for money loaned, or upon a promissory note or other evidence of indebtedness. In most of these cases the defendant should not be given twenty days to answer the complaint and it is difficult to see what harm could be done in giving to the court, upon application duly made, upon notice, the power to cut this time down to ten or even five days. The general limitations upon the power of the courts to extend time within which to commence an action, take an appeal, and so on, are repeated in Section 99 without substantial change from the language used in the Code. Amendments of course. One of the curious things about the Civil Practice Act is that one may read over and over again the lan- guage of particular sections contained therein, with- out realizing that any substantial change has been 140 CIVIL PEACTICE ACT LECTURES. made. I could give a number of instances where I have experienced this difficulty myself. Perhaps the best instance, however, arises in connection with Section 244 relating to the service of amended pleadings as a mat- ter of course. I believe I must have read that section at least twenty or thirty times without realizing that a change of great importance had been made. You will recall that under the Code the right to amend as a matter of course arose in two ways : first, within twenty days after the service of one's own pleading; and, second, within twenty days after the answer, demurrer or reply thereto was served. Accordingly, if a com- plaint is served on May 1st, the plaintiff had, under the Code the right within twenty days thereafter to serve an amended complaint as a matter of course and after the service of a demurrer or answer he also had the right to serve an amended complaint as a matter of course within twenty days. This right to amend as a matter of course could only be once exercised, but there were the two periods mentioned. Under Section 244 of the Civil Practice Act the first period is pre- served intact, but the second period had been elimi- nated. In other words, within twenty days after the service of a pleading the party serving the same has the right to serve an amended pleading once as a matter of course. He also has the right to serve an amended pleading once as a matter of course "within twenty days after the service of a notice of a motion addressed to the pleading." The significant point is that the pleader, has not now the right to amend once as a mat- ter of course within twenty days after the service of the answer or reply to his original pleading. To be specific, if the complaint is served on May 1st and the answer thereto is served on May 21st, the plaintiff may BONDS AND UNDERTAKINGS. 141 not serve an amended complaint within twenty days thereafter, as a matter of course. This he could do under the Code, but cannot do under the Civil Practice Act. Bonds and Undertakings. There are a number of new provisions with refer- ence to bonds and undertakings which will probably not be of great general interest to the profession as these matters are largely attended to by surety com- panies at the present time. They are worthy of a brief reference in passing, however. Section 157 is entirely new and provides that wherever the Civil Practice Act or the Rules authorize and require cash bail or security, negotiable bonds of the United States Government may be delivered in lieu of cash "to the amount of the face value of the bond." As most of the Liberty Bonds of the United States Government were selling below par when the Civil Practice Act took effect, a great many people im- mediately took advantage of this new section. As the Libert}' Bonds approached par, and as they will in all probability soon be selling above par, the use of Sec- tion 157 will probably diminish. It seems more of a temporary provision than one of permanent- value. In Section 148 the following entirely new sentence has been added : "Unless otherwise provided by statute or rule, whenever a bond or undertaking is required in a civil action or special proceeding, it shall be to the effect that the principal shall faithfully and fairly discharge the duties and fulfill the obligations imposed by law or rules and the special order of the court." This sentence requires no explanation and serves to eliminate many technical matters in connection with 142 CIVIL PRACTICE ACT LECTURES. bonds generally -which had in the past led to unfor- tunate results. In Section 151 the rules applicable to the justifica- tion of sureties in connection with undertakings on appeal to the Court of Appeals has been extended to bonds and undertakings generally in all actions or special proceedings. Section 154 now includes in a single section with reference to bonds and undertakings provisions for the protection of the interests of an infant, lunatic, idiot or habitual drunkard, which were formerly to be found in several of the General Eules of Practice and in sev- eral separate Code sections. Sale of Perishable Property. An entirely new section taken from the English Prac- tice Act has been added to Article 61 of the Civil Prac- tice Act with reference to the disposition of property in litigation. This new section (Section 980) refers to the sale of perishable property and is as follows : "It shall be lawful for the court in which an action or special proceeding is pending, or a judge thereof, on the application of any- party, to make any order for the sale, by any person or persons named in such order, and in such manner, and on such terms as the court or judge may think desirable, of any goods, wares, or merchandise, which are the subject of such action or special pro- ceeding, and which may be of a perishable nature or likely to be injured from keeping." There are two phases of this section which should be very carefully considered. The first is that it re- lates to the sale of property which is either "of a perishable nature," or "likely to be injured from keeping." This clearly covers such articles as fruit and vegetables and probably all food stuffs as well. On the other hand, it may be said that there is hardly SALE OF PERISHABLE PROPERTY. 143 any class of personal property Avhieh is not to a cer- tain degree likely to be injured from keeping. In this connection, I was asked a question by one of my students last fall as to whether, under Section 980, the court would have authority to order the sale of a fur coat 'which was in storage and which was the subject of an action, it appearing that the season for fur coats was then at its height and that the action could not be determined until the end of the winter. Here Ave find a case where, as a physical matter, the property is not in any sense likely to be injured from keeping, but the result to the owner thereof in the loss of an active market might well be just as serious as physical deterioration in the article itself. As I interpret the words "likely to be injured from keeping," the Legis- lature did not intend to have the section applied to a case where the only injury was the loss of the market value of the article, as in the fur coat case. It seems to me that the language is intended to apply to cases where the goods may not be what one would call "perishable," but where the storage for any consider- able period Avould bring about a distinct physical deterioration in the article itself. The other point concerning this section which I wish to discuss, is that it is applicable only to the sale of goods, wares or merchandise "which are the subject of" an action or special proceeding. These Avords have been used so many times in the past in connection Avith joinder of parties, joinder of causes and other matters and the courts have given such varied and sometimes inconsistent interpretations of the phrase that it is difficult to tell in advance just how this particular sec- tion will be construed in this respect. Apparently the application of Section 980 is not in any sense restricted 144 CIVIL PRACTICE ACT LECTURES. to replevin actions as there is a special provision in Section 1101a of the Civil Practice Act concerning the sale of perishable goods and animals which have been replevied. On the other hand, the language of Section 1101a is not nearly as extensive as the language of Section 980. Enforcement of foreign decree of divorce or separation. Sections 1171 and 1172, both of which were amended by the Legislature in 1921, make it possible to enforce a foreign decree of divorce or separation by the normal proceedings to be used for the enforcement of a domestic decree of a similar nature. The changes con- tained in these sections are really not strictly new to the Civil Practice Act as the most important thereof was originally made as an amendment to Code Section 1773 by Chapter 216 of the Laws of 1920. There is, however, an important limitation contained in Section 1171 which should not be forgotten, namely, that the remedies available for the enforcement of a foreign decree of divorce or separation may only be used in this state, where the foreign decree of divorce is granted upon the ground of adultery or where the decree of separation is made upon the basis of one of the grounds for such decree available in this state. This limitation plainly appears on the face of Section 1171 and has been recently discussed by Mr. Justice Wagner at Special Term, Part I, of the Supreme Court, New York County, in Eisenberg v. Eisenberg (N. Y. L. J., May 19, 1922). Service of Interlocutory Papers. The provisions with reference to the service of inter- locutory papers have been taken from the body of the SERVICE OF INTERLOCUTORY PAPERS. 145 statute and are now included in the rules as Rules 20 and 21. There are two very important changes. Under the Code, it will be recalled that service of an interlocutory paper at the office of the attorney when such attorney's office was closed, could be made by placing the paper, inclosed in a sealed wrapper directed to the attorney, in the attorney's letter box. In New York City and probably in many other parts of the state it is a very customary thing for the attorneys to have attached to the doors of their offices a slit or open- ing sometimes marked with the word "letters" and at other times not marked at all. It was quite unusual, however, to have any letter box placed behind the slit in the door so that letters or other documents dropped through the opening simply fall upon the floor. It was repeatedly held under the Code that service by drop- ping a paper through such a slit or opening was not a valid service because not made in the "letter box" of the attorney. This rule has been changed and it is now provided in Rule 20, subdivision 3, that service may be made by depositing the paper in the office "letter- drop" or. "letter box." It is important to remember -that proper service cannot even now be made by simply taking a paper, such as a notice of motion and annexed affidavits, for example, and pushing it through the slit in the door. It must now as formerly be inclosed in a sealed wrapper directed to the attorney. The other change relates to the service of interlocu- tory papers upon an attorney by mail. Under the Code, one of the regular methods of service upon an attorney was by leaving the paper at his residence within the state, with a person of suitable age and discretion, be- tween the hours of 6 o'clock in the morning and 9 o'clock in the evening, where there was no person in 10 146 CIVIL PRACTICE ACT LECTURES. charge of the attorney's office. This made no provi- sion for the case where the attorney was a non-resi- dent of the state and the discrepancy was important, in view of the fact that a great many lawyers who prac- tice in New York City reside in either New Jersey or Connecticut. This matter is now taken care of by sub- division 4 of Rule 20 which provides : "If, under the rules, a paper may be served at the residence of an attorney living in the state, service may be made on an attorney practicing in the state but residing outside thereof, by depositing the paper in a post-office or in any postoffice box regu- larly maintained by the government of the United States in the city, village or town where his office is located, properly inclosed in a postpaid wrapper directed to him at his office. A service made as provided in this subdivision is equivalent to personal service on him." Before leaving this subject, I wish to call your atten- tion to the fact that there is no real uniformity in the present practice with reference to mailing of papers, both jurisdictional and interlocutory. In Rule 20, with reference to several of the various subdivisions con- tained therein, the expression "in a post-office or in any post-office box" is used. In Rule 53 with reference to proof of service of the summons, subdivision 8 men- tions the deposit of a summons "in a post-office." Rule 50 with reference to the order for service of a summons by publication directs that the order must contain a direction for the deposit of the papers "in a post-office or in any post-office box." Section 231 as to substi- tuted service, provides for the deposit "in a post- office." On the other hand, Section 154 which relates to service of papers generally through the postoffice has now made applicable generally throughout the state the following provision, which under the Code, applied to New York City only, "deposit in a branch COURT AND JUDGES' ORDERS. 147 postoffiee is equivalent to deposit in a general post- office." There appears to be no serious difficulty about the matter, and I merely wish to make the point that it is important to consult the specific provisions applicable to the particular matter under consideration so that the the service may be properly made. I do think, how- ever, that it would be an easy matter to have the rules and the statute as well so amended as to provide a single rule applicable generally to the matter of service of papers by mail; and I may say that I know of no reason why a general provision might not be adopted applicable to jurisdictional and interlocu- tory papers as well, which should provide for the deposit of the papers properly inclosed in a postpaid wrapper in any postoffiee, branch postoffiee, postoffiee station, letter box, mail chute or other receptacle pro- vided for the purpose and regularly maintained by the Government of the United States. Court and Judges' Orders. The distinction between court orders and judges' orders has always been a source of trial and tribulation to attorneys and court clerks. The distinction, how- ever, is one of importance as court orders must be entered and filed, whereas judges ' orders are normally returned to the attorneys who submit them for sig- nature. Furthermore, when considered in connection with the various specific instances where one form or the other is required, it is quite apparent that it is not feasible, nor in any sense convenient, to attempt to abolish the distinction between these two forms of orders. On the other hand, there have been a number 148 CIVIL PRACTICE ACT LECTURES. of decisions in the past which imposed far too harsh a penalty because of the use of the wrong form. In many instances whole proceedings were vacated because of a mistake in this respect. Accordingly, without in any sense attempting to abolish the distinction between court orders on the one hand and judges ' orders on the other, the Civil Practice Act very wisely provides as follows, "See. 129. An order made by a justice of the supreme court, out of court, shall not be void on the ground that a statute or rule, in terms or in effect, requires the motion therefor to be made to, or authorizes the order to be made only by, such court, unless the order be made outside of a county or judicial district in which an application to the court for such order is authorized." There has been some general talk since the Practice Act went into effect which would indicate a disposition on the part of many lawyers to treat this section as in effect abolishing the distinction between court orders and judges' orders. It does no such thing; and it is just as important today as it ever was to submit the proper form of order for signature. Suppose, for in- stance that an order of discontinuance is submitted to the clerk at Special Term, Part II, in the form of a judge's order. Plainly, Section 129 gives no authority to the clerk to place his approval upon such a form of order and to submit it to the judge sitting at that Part for signature. All that Section 129 purports to do is to cover those cases where by mistake or inadvertence the wrong form of order has been signed ; then in that event, the statute directs that the order shall not be void, merely because the wrong form of order has been used. Furthermore, the section is in terms restricted to the Supreme Court. REVIVAL, PROCEEDINGS. 149 Revival Proceedings. One of the great difficulties in the past in the case of the death of one or more of the parties to an action arose in connection with the service of the necessary motion papers on the motion to revive and continue the action. It was for this reason that the Code sec- tions provided for the revival and continuance of such actions either by motion or by the issuance of a sup- plemental summons and a supplemental complaint. As there was no provision in the Code for the service of motion papers outside of the state, then in the event that the executor or administrator of the deceased party happened to be a non-resident, the method of supplemental summons and complaint became impera tive, as there were provisions in the Code with refer- ence to the service of a summons by publication. Generally speaking, the provisions of the Practice Act with reference to the revival and continuance of actions, where one or more parties thereto have died, do not involve any substantial change from the prac- tice as it existed under the Code; and we still find a reference to a supplemental summons and to supple- mental pleadings in Section 87 of the Civil Practice Act. Section 90a, however, is a new provision which was added to the Code by Chapter 481 of the Laws of 1920 and which was embodied in the Civil Practice Act by the Legislature in 1921. That section provides gener- ally that the service of notices in connection with the revival of an action or proceeding may be made by such method and in such manner as the court or judge shall direct. The application of this new section will, of course, depend upon the facts of the various cases as they arise. It may be said, however, that most 150 CIVIL PRACTICE ACT LECTURES. instances will be such, as to make it possible for tbe court to direct the service of the papers by mail or otherwise under Section 90a and to thus dispense with the more cumbersome and expensive method involved in the issuance of a supplemental summons. LECTURE VII. ; Compulsory Admissions. There are two sections of the Civil Practice Act covering the general subject of compulsory admissions, one of which was in the Code for a great many years and in fact originally came from the Code of Procedure, and the other is entirely new and is taken from the English Practice Act. The section which existed all along under the Code is Section 322 which provides as follows : "The attorney for a party, at any time before the trial, may exhibit to the attorney for the adverse party, a paper material to the action and request a written admission of its genuineness. If the admission is not given within four days after the request, and the paper is proved or admitted on the trial, the expenses incurred by the party exhibiting it in order to prove its genuineness must be ascertained at the trial and paid by the party refusing the admission, whatever the result of the cause, matter or issue may be; unless it appears to the satisfaction of the court that there was a good reason for the refusal." I am discussing this section, because it is a curious fact that although in the Code for all these years it was used very little by lawyers generally and indeed I do not doubt that large numbers of lawyers through- out the state did not even know the section existed. What is the reason why this section proved of so little practical value? The reason, I take it, is that the only penalty imposed upon a party who failed to give upon request a written admission of the genuineness of a paper was that the expense incurred by the party exhibiting the paper had to be ascertained at the trial and paid by the party refusing the admission. One 151 152 CIVIL PRACTICE ACT LECTURES. may well imagine the reluctance of any attorney to complicate the trial of a case on the merits with inci- dental proof of the expense incurred in proving the genuineness of a certain paper; and it was probably found that there was too much red tape involved to make the section of practical value. Furthermore, the court might always find that there was some good reason for the refusal to make the requested admission and thus relieve the party who refused the admission from any obligation to pay the expense involved. This section seems to me to be one which, while not of great value, for the purpose intended, may even be used for ulterior purposes in order to confuse the jury and divert their attention from the really fundamental issues of the case. In other words, a lawyer with a difficult or desperate case might well request his adver- sary to admit the genuineness of several documents about which his adversary knew little or nothing, for the sole purpose of making a great fuss about the matter at the trial proving the circumstances and the expense involved, in the hope that the jury becoming incensed at the failure of the adversary to admit the genuineness of the documents might be induced to render a favorable verdict. There appears to be no reason whatsoever why this particular remedy of a compulsory admission with reference to the genuineness of a document could not be made really useful and practical; and I think this could be done by changing the penalty involved and making it possible, after the trial, to impose the ex- pense of proving the genuineness of the documents upon the delinquent party by an ordinary motion. This would do away with the old system which does not seem to be practicable or workable. ADMISSIONS. 153 This same criticism is apparently applicable to the new section with reference to the compulsory admis- sion of facts. Section 323 provides, "Any party, by notice in writing, at any time not later than ten days before the term or day for which notice of trial has been given, may call on any other party to admit, for the purposes of the cause, matter or issue only, any specific fact or facts mentioned in such notice. In case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the court or a judge, the expenses incurred in proving such fact or facts must be ascertained at the trial and paid by the party so neglecting or refusing, whatever the result of the cause, matter or issue may be, unless at the trial or hearing the court or a judge certify that the refusal to admit was reasonable, or unless the court or a judge, at any time, shall order or direct otherwise. Any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular cause, matter or issue, and not as an admission to be used against the party on any other occasion or in favor of any person other than the party giving the notice. The court or a judge, at any time, may allow any party to amend or withdraw any admission so made on such terms as may be just. ' ' Certainly this is a remedy which if practicable and workable is of the utmost importance to all litigants. There are certain fundamental difficulties, however, which are well illustrated by a recent decision by Mr. Justice Cohalan at Special Term, Part I, of the Supreme Court, New York County, in the case of Koppel Industrial Car & Equipment Co. v. Portalis & Co., Ltd. (N. T. L. J., May 20, 1922). In that case the defendant served a notice and demand pursuant to Section 323 of the Civil Practice Act which covered 115 folios and contained 226 separately numbered paragraphs. If the plaintiff had complied with the notice and admitted the facts therein purported to be set forth, it could only have done so after a most ex- haustive investigation and the incurring of consider- able expense, and the whole demand was so lengthy and 154 CIVIL PRACTICE ACT LECTURES. generally unreasonable as to put Section 323 to the acid test. As far as the language of Section 323 was concerned the defendant was within his rights in serving a demand containing so many separate para- graphs and covering practically the entire case. On the other hand only the clearest sort of legislative mandate would justify the court in sustaining such an unreasonable demand as was made in this case. The motion made by the plaintiff was to strike out the notice and demand as unauthorized and in granting the motion in part and denying it in part, Mr. Justice Cohalan laid down certain rules which, if adopted by the appellate courts, will go far to clarify, and to properly clarify, Section 323. The motion was granted insofar as the notice and demand included facts falling in any one of the following classes : (a) facts, the truth or falsity of which could not be ascertained by the person upon whom the notice was served without great trouble and expense; (b) facts resting upon purely opinion evidence ; (c) facts, the evidence of which would be inadmissible at the trial; (d) facts which standing alone might have, to the court or jury, an entirely different meaning than if the whole fact were pre- sented, which the court characterized as "half a fact." Of course, the plaintiff in the Koppel Industrial Car & Equipment Co. case was not in any sense required to make a motion to strike out the notice and demand. He could have simply refused to comply with the de- mand and have taken his chances on the matter at the trial, where the court would certainly have certified that the refusal to admit was reasonable. DISCOVERY AND INSPECTION. 155 Discovery and Inspection. With respect to discovery and inspection the pro- visions of the Code are substantially repeated in Sec- tions 324, 325 and 326 of the Civil Practice Act, sup- plemented by Kules 140, 141 and 142. The normal procedure will thus be to obtain an order to show cause directing that the adverse party produce and discover a particular book, document, paper, machine or other article involved, or show cause why he should not be compelled to produce and discover the same. On the return day the matter will be argued out just as was done under the Code and an order made direct- ing such discovery or inspection as the facts may war- rant and specifying the time, place and manner in which the discovery and inspection is to be made. There is a provision in Eule 142 which seems to be a very good one, to the effect that if discovery or inspec- tion be directed, a referee may be appointed by the order to direct or superintend it, whose certificate, unless set aside by the court is presumptive, and ex- cept in proceedings for contempt, conclusive evidence of compliance or) non-compliance with the terms of the order. This will eliminate many of the irritating questions which have arisen in the past as to whether a proper discovery and inspection have been per- mitted. (See Lang f elder v. Levy, Special Term, Part I, New York City Court, Schmuck, J., N. Y. L. J., May 17, 1922). It is important to note and you will no doubt remem- ber that the Code provisions as to discovery and in- spection which have been thus repeated in the Civil Practice Act do not merely cover books, papers and documents, but relate generally to "any article or property" in the possession of the adverse party re- 156 CIVIL PRACTICE ACT LECTURES. lating to the merits of the action or of the defense therein. I remember a case in which, pursuant to this section of the Code (now Section 324 of the Civil Prac- tice Act), I obtained the discovery and inspection of one of the buses of the Fifth Avenue Coach Company which had been involved in a certain accident and upon this discovery and inspection certain measurements and photographs were taken. There are, however, two new provisions in the Civil Practice Act on the subject of discovery and inspec- tion. These are both taken from the English Practice Act and seem of great practical value. They are as follows : "See. 327. Every party to an action shall be entitled, at any time, by notice in writing, to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his attorney, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterward be at liberty to put any such document in evidence on his behalf in such cause or matter, unless he shall satisfy the court that such document relates only to his own title, he being a defendant, or that he had some other cause or excuse which the court shall deem sufficient for not complying with such notice; in which case the court may allow the same to be put in evidence on such terms as to costs and otherwise as the court shall think fit." ' ' Sec. 328. The court, on the application of any party to an action, also may make an order requiring any other party to state by affidavit whether any one or more specific documents, to be specified in the application, is or are, or has or have at any time been in his possession or power, and, if not then in his possession, when he parted with the same, and what has become thereof. Such application shall be made upon an affidavit stating that in the belief of the deponent the party against whom the application is made has, or has at some time had in his possession or power the document or documents specified in the application, and that they relate to the matters in question in the case or matter, or to some of them." The penalty prescribed in Section 327 is thus that DISCOVERY AND INSPECTION. 157 the party refusing to produce the document for inspec- tion upon notice shall not be at liberty to put the docu- ments in evidence at the trial. This penalty is one which has been in force for a great many years in those instances! where a party during the course of a trial refuses or neglects to produce the paper upon request ; then such party is prevented from later plac- ing the original in evidence at that trial. It would seem as though the penalty thus prescribed is simple, easily applied and entirely practicable. It has been suggested that perhaps this penalty pro- vided in Section 327 is not automatic but that a sepa- rate motion should be made in advance of the trial to preclude the delinquent party from putting the paper or document in evidence at the trial, upon the analogy to a similar motion where a party has refused or neglected to comply with an order directing him to give a bill of particulars. While this interpretation is possible, such does not seem to be the English prac- tice, and I can think of no real reason why in constru- ing Section 327 the courts should not determine that the penalty is automatically imposed. If the Civil Practice Act is for the purpose of simplifying and liberalizing the procedure, there would appear to be no good reason for adopting a construction of this section which only serves to complicate the procedure and multiply the, number of motions and applications to be made. With respect to Section 328, I should think the pro- visions of this section so important as to justify the formulation of a rule in every up-to-date law office, requiring the managing clerk to check over each paper served upon the office and make; a memorandum of the specific documents referred to therein whether copies 158 CIVIL PRACTICE ACT LECTURES'. of the same actually appear or not, so that a report may be made to the member of the firm in charge of the case and he be thus reminded that under Section 328 an application may be made to require the other side to state the facts specified in Section 328 with reference to the particular document or documents. Unless some such office rule is regularly formulated the chances are that Section 328 will be rarely used; and if lawyers acquire the habit of checking all such mat- ters up as a matter of course, it is very probable that the result will be a more careful preparation of motion papers generally than now seems to be the case. Cancellation of Lis Pendens. Section 124 with reference to the cancellation of a lis pendens in actions other than to foreclose a mort- gage or for partition of real property or for dower where it shall appear to the court that adequate relief can be secured to the party filing the same by a deposit of money, or in the discretion of the court by the giv- ing of an undertaking, is new, but is substantially taken from former Section 1671 of the Code. Appellate Practice. There have been a considerable number of very im- portant changes in connection with appellate practice which, while not in any sense very radical, relate to matters which are constantly arising in every day practice. The first of these provisions is contained in Section 620 to the effect that an order of the Appellate Divi- sion in reversing a judgment or order of the lower court shall state whether the reversal was made upon the facts or upon the law, or upon both the law and APPELLATE PRACTICE. 159 the facts. I need not tell you that the grounds of reversal in the Appellate Division are vital in connec- tion with the jurisdiction of the Court of Appeals, which is restricted to matters of law and which with certain well defined exceptions, such as the right to review the facts on an appeal from a judgment in a murder case, does not extend to matters of fact. It is in connection with the possibility of an appeal to the Court of Appeals that Section 620 of the Civil Practice Act now requires the order of the Appellate Division to be very plain and clear on this point. Under the Code Practice there was no specific pro- vision of law making it imperative for the Appellate Division to specify whether its reversal was on the facts or on the law; sometimes the order contained such a specification and in other instances it did not, with the result in those cases where no specification was made of producing considerable uncertainty and a good deal of embarrassment and difficulty in connec- tion with the presentation of the case before the Court of Appeals. Even the rule which the Court of Appeals finally adopted by decision, to the effect that where the order was silent it would be assumed that the reversal was on questions of law, was not in any sense adequate as the same fundamental uncertainty existed, which the Appellate Division could have cleared up in each specific case had it taken the trouble to do so. To take a concrete illustration, let us suppose that under the Code practice there is a judgment for the plaintiff entered upon a verdict of the jury in a per- sonal injury action, and upon appeal to the Appellate Division the appellant argues questions relating to the weight of evidence and also certain questions with reference to exceptions to the admission and rejection 160 CIVIL PRACTICE ACT LECTURES. of evidence and exceptions to the charge and to refusals to charge as requested. The Appellate Division reverses the judgment and orders a new trial. While the opinion discusses in detail errors committed by the trial court in its charge to the jury, the opinion also discusses briefly the weight of evidence; and let us further assume that the order of reversal does not in any way specify whether it was made upon the facts or upon the law. You may readily imagine the situa- tion presented to the Court of Appeals in the event of an appeal to that court. On the one hand there is the opinion of the Appellate Division indicating very clearly that the reversal was partly upon the ground that the verdict was against the weight of evidence; on the other hand, in the absence of any specification, there is the assumption that the reversal was on ques- tions of law which the Court of Appeals had the power to review. This uncertainty is now entirely removed by Section 620; and if by inadvertence the order of the Appellate Division in any particular case fails to specify whether the reversal is upon the facts or upon the law or upon both the law and the facts, a motion for a resettlement of the order will at once require the court to make the proper form of order. There is another change which relates to appeals generally and which was a very necessary one. I refer to Sections 592, 612 and 625 which provide generally that when one side serves a copy of an order or judg- ment with notice of entry thereof, the effect is not merely to start the time within which his adversary may appeal running, but to also equally limit the time within which the party serving the copy of the order or judgment with notice of entry thereof may himself appeal. APPELLATE PRACTICE. 161 While there was very little to be found in the cases on the subject under the Code, it was generally sup- posed that the time of one of the parties within which to appeal from an order or judgment could only be started to run by the service upon him of a copy of the order or judgment with notice of entry; and I recall several cases which were brought to my atten- tion under the Code Practice where attorneys who wished to keep open their own time to appeal effected their purpose by promptly upon the decision of the matter serving upon their adversary a copy of the order or judgment with notice of entry, with the effect that the adversary having already been served with the copy of the order or judgment neglected to serve another copy upon his opponent. It requires no argu- ment to demonstrate that such technical practice as this was most unfair and the provisions of the Civil Practice Act on this subject have brought about a much needed change. There are several changes with reference to appeals to the Court of Appeals to which a brief reference should be made. Section 591 now provides that an application may be made to the Court of Appeals for permission to appeal to that court during a recess of the Court of Appeals, the motion papers to be served during the recess period, the motion to be returnable after the expiration thereof, it being required that the motion be noticed for a day not later than ten days after the Court of Appeals shall have reconvened. Section 591 goes on to provide that if the motion is granted then the party applying for such permission shall have thirty days from the granting thereof to perfect his appeal to the Court of Appeals. Section 590 now contains a very desirable provision 11 162 CIVIL PRACTICE ACT LECTURES. to the effect that where the Appellate Division has passed upon a matter hy interlocutory order or judg- ment which in effect has disposed of the entire con- troversy and merely left the formality of entering the final judgment in the court of original jurisdiction, that in such cases the Appellate Division having fully passed upon the matter the defeated party may appeal directly, from the final judgment rendered at Special Term or Trial Term or pursuant to the directions con- tained in a referee's report, to the Court of Appeals. Section 590 goes on to provide that such appeals bring up for review only the determination of the Appellate Division, but this is entirely adequate as in such cases it is the determination of the Appellate Division which the appellant really seeks to review. To make this matter entirely clear I may say that it very frequently happened under the Code that a de- feated litigant would appeal to the Appellate Division and the decision of the Appellate Division would entirely cover the fundamental questions of law in- volved, but because of some technical requirement the order of the Appellate Division would direct some further action on the part of the successful liti- gant, such as the entry of a final judgment or the conduct of some further proceedings of a purely formal nature. Under the Code, it was necessary, in spite of the fact that the Appellate Division had already fully passed upon the matter, to appeal from the final judg- ment of the Special Term or Trial Term to the Appel- late Division, which would affirm the judgment as a matter of course, and then only could the appeal be made to the Court of Appeals. This system under the Code was unduly prolonged, involved the payment of additional costs on the pro forma affirmance in the APPELLATE PRACTICE. 163 Appellate Division, and was plainly unnecessary. The new provision of Section 590 properly permits the direct appeal to the Court of Appeals from the final judgment of the Special or Trial Term. Section 593 of the Civil Practice Act was amended in 1921 by adding the following sentence, which is self explanatory, "Provided, however, that no security shall be necessary to perfect such an appeal, where the appellate division or a judge of the court of appeals shall certify that a constitutional question is involved; nor by a claimant under the workmen's compensation law where the decision of the appellate division is not unanimous, nor where the decision of the appellate division is unanimous and such appeal is with the consent of the appellate division, or a judge of the court of appeals. ' ' LECTURE VIII. State Writs Abolished. With the exception of habeas corpus and certiorari to inquire into the cause of detention, the state writs have been abolished by the Civil Practice Act. The former writ of certiorari to review the determination of an inferior tribunal, the alternative and peremptory writs of mandamus, and the writ of prohibition, while abolished (Sections 1283, 1313, 1341) have been re- tained in the form of what is now known as a certiorari order (Section 1284), mandamus orders (Section 1314), and a prohibition order (Section 1342). The old writ for the assessment of damages having long been prac- tically a dead letter in the law is now entirely gone. The reason why the writ of habeas corpus and the writ of certiorari to inquire into the cause of deten- tion have been preserved is that it was feared lest even though preserved in substance, some question of the constitutionality of the new provisions might be raised. As I have been repeatedly asked for an explanation of why it is necessary to have both a writ of habeas corpus and a writ of certiorari to inquire into the cause of detention, I may say that the reason is that the writ of certiorari to inquire into the cause of detention is particularly applicable where a person has been de- tained pursuant to the order of some judicial or quasi- judicial tribunal from which no right of appeal would lie and where, in order to properly pass upon the legality of the detention, a return of the proceedings before the inferior tribunal is required. Where, on the other hand, there are no such judicial proceedings, the 164 STATE WRITS ABOLISHED. 165 ordinary writ of habeas corpus is adequate to cover the case. It is not an uncommon experience to have an application which shall combine the writ of habeas corpus and a writ of certiorari to inquire into the cause of detention. This was well illustrated in the recent Semenoff case (People ex rel. Semenoff v. Nagle, — App. Div. — ), where the proceeding came on for hear- ing at Special Term, Part II, of the Supreme Court, New York County, on the return of a writ of certiorari to inquire into the cause of detention pursuant to Sec- tion 1230 of the Civil Practice Act.. With respect to the writs of certiorari to inquire into the cause of detention, and habeas corpus, the practice has been retained in exactly the same form as it existed under the Code. As to the other proceedings formerly taken by state writ, the present practice is to apply for an order in the first instance, a certified copy of which is served upon the defendant or respondent, and the proceedings thereafter follow substantially the practice prescribed by the Code. Thus Section 1283 of the Civil Practice Act provides for the issuance of a certiorari order in certain instances, Section 1294 provides for the service of the order, Sections 1296 and 1297 provide in detail as to when and where the order is returnable and how the return of the respondent shall be made and Section 1300 provides that after the return is complete, either party may notice it for hearing at any time and the matter be thus disposed of in due course. There is a further point as to certiorari, however, which it is important to remember. Section 1283 by no means purports to abolish all writs of certiorari provided by any statute prior to October 1, 1921, but only the writ of certiorari "under the provisions of the 166 CIVIL PRACTICE ACT LECTURES. Code of Civil Procedure." This is the purport of Sec- tion 1283 as a whole. The result is that other certiorari proceedings pursuant to other statutes such as the Tax Law are not governed by the Civil Practice Act but by the special statute in which such proceedings are described. The question has arisen repeatedly in refer- ence to certiorari proceedings to review tax assess- ments since October 1, 1921, and so far as I have been able to ascertain the courts have uniformly ruled that the proper practice in such cases is to proceed by the ordinary form of writ of certiorari and not by a cer- tiorari order as provided in the Civil Practice Act. With reference to mandamus, mandamus orders are classified as either alternative or peremptory (Section 1314) and the alternative form of order is granted upon a petition as provided in Section 1315, which re- quires previous notice of the application for the order to be given to the body, officer or person against which or whom the order is sought. These orders are granted only at a Special Term of the Supreme Court, except where granted by the Appellate Division pursuant to the terms of Section 1318; and where the applicant's right to the mandamus order depends only upon ques- tions of law, a peremptory order may be granted in the first instance (Section 1319). The normal practice will still be to apply originally for the alternative order changing the same to a peremptory order if it shall appear that the respondent does not contest any of the matters of fact alleged in the petition. The provisions as to the form and contents of the re- turn, the issues of fact raised by the return and the trial thereof, are identical with the similar provisions contained in the Code and would not seem to require any special treatment at this time. PROVISIONAL REMEDIES. 167 Provisional Remedies. The changes in reference to provisional remedies fall into two classes : first, a partial consolidation of the provisions relating to arrest, injunction and attach- ment, so as to make the practice in obtaining any one of these provisional remedies as near as may be identical with the practice in obtaining the others ; and second, a large number of changes in detail with refer- ence to each of the provisional remedies partly for the purpose of clarification and partly for the purpose of changing the law. All of these changes must be examined with care. Sections 814 to 825 of the Civil Practice Act are characterized as general provisions applicable to arrest, injunction and attachment; and in many respects these general provisions place each of these remedies upon the same basis. Thus Section 814 classifies the order of arrest, the warrant of attach- ment, and the order for a temporary injunction together, and Section 815 provides that an application for such an order or warrant may be made without notice. Then Section 816 provides generally with reference to the proof necessary to be shown in order to obtain any one of these provisional remedies, thus consolidating in a single section provisions which had been split up into several different titles of the Code of Civil Procedure. Section 816 is as follows : "Proof of a sufficient cause of action or fact in support thereof or of any extrinsic fact, to entitle a party to such an order or warrant, or proof to support or oppose a motion to vacate the order or warrant or discharge a person from arrest, or discharge an attachment, may be made by affidavit and by such other written evidence as the rules permit." Probably the only portion of this section which may in any sense be regarded as substantially changing the 168 CIVIL PRACTICE ACT LECTURES. practice is the last clause -which permits the proof to be made "by such other written evidence as the rules permit." It is a significant fact that the Rules of Civil Practice as now formulated contain no provision whatever to supplement this clause of Section 816. Rules 80 to 84 inclusive are the only rules of Civil Practice on the subject and they do not in any sense purport to modify the procedure followed under the Code with respect to the proof to be submitted in sup- port of an application for a provisional remedy. No doubt the Legislature intended by Section 816 to give the courts and the Convention for the Formula- tion of the Rules of Civil Practice very broad powers so as to, if necessary, further simplify the practice in connection with obtaining provisional remedies. On the other hand, the practice followed under the Code was apparently entirely adequate and did not seem to require any simplification or broadening in this respect. While there was no specific provision in the Code on the matter, there are a great many decisions which divide the proof to be submitted on an application for the issuance of a provisional remedy into two classes, namely, statements made on personal knowledge and statements made on information and belief. With reference to statements contained in affidavits pur- porting to be made upon personal knowledge, the courts very naturally required some showing of facts which would indicate that the affiant really had personal knowledge of the facts to which his affidavit related (Hoormann v. Climax Cycle Co., 9 App. Div. 579; Price v. Levy, 93 App. Div. 274). This rule was interpreted with great liberality and where the affiant, appeared to be personally connected with the transac- tion to which his affidavit related, a bare statement PROVISIONAL REMEDIES. 169 ■without any qualification was assumed to be made on personal knowledge and was given due credence. I remember one case (King v. King, 59 App. Div. 128), where the mere fact that the plaintiff, who was suing as an assignee of a part of a claim, was shown to be one of the beneficiaries under the will of the testator to whom the claim originally belonged, was deemed sufficient as the court said to give ' ' authenticity to her sworn statements which would not apply to a stranger purchasing a cause of action and whose rights and knowledge thereof would necessarily be inferior." As to statements made on information and belief, the practice under the Code was equally liberal and seems to extend to a point beyond which it would not be safe to go. It was in no sense necessary to have all affi- davits made by persons who had personal knowledge of the facts or who could give competent testimony at the trial with respect to the matters set forth in their affi- davits. The rule which has been repeatedly asserted by the courts under the Code is as follows, as stated by the Court of Appeals in Buell v. Van Gamp, 119 N. T. 160: "Hearsay evidence is generally excluded upon the trial of issues of fact in actions. As a rule, it is not good common law evidence. But in collateral proceedings or matters of practice, where orders in the progress of actions are applied for, judges frequently act upon facts stated upon information and belief. In such proceed- ings absolute certainty is not expected; the evidence is sufficient if convincing and satisfactory, is usually by affidavit, ex parte, and is not subjected to the test of cross-examination. All that is required is that the information furnished by the affidavit shall be such that a person of reasonable prudence would be willing to accept and act upon it." In the Buell case the affidavits relied upon in sup- port of the attachment consisted of copies of affidavits which were submitted with an explanation of the 170 CIVIL PRACTICE ACT LECTURES. reason why the original affiants could not be found to make new affidavits. In view of these decisions it would not seem neces- sary for the Civil Practice Act or the Eules of Civil Practice to permit the use upon the application for a provisional remedy of any "other written evidence" than was permitted by the decisions construing the Code. Section 817 also consolidates a number of provisions formerly contained in several different sections of the Code and in addition this section contains new matter of considerable importance. It is as follows : "Except as otherwise specially prescribed by statute, or rules adopted as provided in this section, any such order or warrant may be granted, in a proper case, either by the court in which the action is brought or a judge thereof or any county judge; but the rules may provide, either generally or as to any depart- ment, that an application for a warrant of attachment or for an order for the arrest of a party, other than an order which by express provisions of statute may be granted only by the court, shall be made to such a judge and not to the court." It will thus be observed that an order of arrest or an injunction order or a warrant of attachment may be granted either by the court in which the action is brought or by a judge thereof or by any county judge except as otherwise specially prescribed by statute: and one of such special provisions is contained in Sec- tion 827 with reference to an order of arrest in an equity case which can still only be granted "by the court." The last portion of the section is permissive only and gives the judges power to adopt rules requir- ing applications for an attachment or arrest to be made to a judge only and not to the court, in any department. Such a rule would apply to the applica- tion and would authorize the court to decline to hear PROVISIONAL REMEDIES. 171 the application. The present Eules of Civil Practice do not touch upon this matter at all ; nor, as far as T am aware, have any special rules been adopted in any judicial department of the state to exercise the author- ity granted by Section 817. Only one of the remaining sections contained in the preliminary general provisions at the beginning of Article 46 of the Civil' Practice Act appears to require any extended discussion. Section 821 merely repeats the general requirement that the order or warrant must briefly recite the ground or grounds on which it is granted ; Section 823 prescribes the instances in which these provisional remedies may not be granted to- gether; Section 824 merely contains the general pro- vision that these remedies are available to a defendant in connection with a counterclaim, and Section 825 now contains the general provision formerly placed together with the provisions governing the form of the summons, to the effect that the court upon the granting of a provisional remedy, acquires a conditional juris- diction which entirely fails, unless properly followed up as required by law. The remaining section, which I think requires con- siderable discussion, is Section 822 relating to new proof to sustain an order or warrant upon the hearing of a motion to vacate. This is a question of great practical importance and is not made quite as clear in the Civil Practice Act as might have been desired. Perhaps it might be well for me to first briefly refer to the practice under the Code in this respect and then discuss Section 822. Prior to 1911, if a motion were made to vacate a warrant of attachment, an order of arrest or injunction order' and this motion were based either upon a failure of proof or upon a defective 172 CIVIL PRACTICE ACT LECTURES. complaint, where a complaint was required, the court had no option in the matter but was required to grant the motion to vacate even though it clearly appeared that the defect or omission could easily be supplied or remedied. With respect to defects of a purely formal nature, Section 723 of the Code gave the courts the limited power to permit an amendment of such matters even prior to 1911. The result was that in almost every case of the granting of a provisional remedy, an application would be made on behalf of the defendant to vacate the order or warrant upon some technical ground; and, as applications for such provisional remedies are usually made in great haste, astute lawyers were always able to find some ground or other upon which to base a motion to vacate. After the pro- visional remedy was thus set aside, two unfortunate results ensued: first, a liability was automatically established under the bond filed by the plaintiff; and second, the defendant was given an opportunity to get himself or his property beyond the jurisdiction and thus make it impossible for the courts to afford the plaintiff any relief by the issuance of a new order or warrant, upon proper papers. Accordingly in 1911, the Legislature amended Sec- tion 768 of the Code which related generally to motion practice by adding the following sentence : "Whenever a motion is made to set aside or vacate an order, judgment or decree or any paper filed or proceeding taken, because of technical defects therein, or because of defects or insufficiencies in the papers or proceedings upon which it was made or entered and such defects or insufficiencies can, without prejudice to inter- vening rights, be cured or supplied, it shall be the duty of the court to direct upon the hearing of such motion, that such defects or insufficiencies in the order, judgment or decree, or in the papers or proceedings, be cured or supplied nunc pro tunc, award- ing against the party in whose order, judgment or decree, or in PROVISIONAL REMEDIES. 173 whose papers or proceedings such defects or insufficiencies appear, costs in favor of the adverse party." While not specifically so stated, it was very clear that the Legislature thus intended to remedy the situa- tion which theretofore existed in connection with motions to vacate provisional remedies. Unfortu- nately, however, Section 768 as amended made no reference whatever to provisional remedies nor was any amendment made to the sections relating to arrest, attachment and injunction so as to clearly indicate that the new practice was intended to in a sense modify directly and fundamentally the provisions of law con- cerning provisional remedies generally. The point was of importance because upon the granting of a pro- visional remedy under the Code, the court acquired a purely conditional jurisdiction; and if the plaintiff failed to show the necessary facts and conditions re- quired by the various provisions of the Code applicable to arrest, attachment and injunction, a very forceful argument could be made to the effect that the court entirely lacked jurisdiction in connection with the par- ticular provisional remedy which had been granted, and it was accordingly argued that in spite of the new portion of Section 768 added in 1911, the courts were without the power to adjourn a motion to vacate and permit the plaintiff to supply the defects or insuffi- ciencies in his papers. While this argument was a very forceful one, the courts, no doubt largely in- fluenced by the equities of the situation and the ques- tions of policy involved, have held that upon the making of a motion to vacate an order of arrest, an injunction order, or a warrant of attachment, the justices at Special Term had power to permit an amendment of the papers where the defect was of a formal nature or 174 CIVIL PRACTICE ACT LECTURES. to adjourn the motion and permit the plaintiff to sup- ply the defects and insufficiencies hy filing new papers and affidavits as the circumstances might require (Cutler v. Alia vena, 165 App. Div. 422; Manhattan Commercial Co. v. LeucMenberg Co., 77 Misc. 565). The Court of Appeals never passed upon the point, how- ever, and a number of thoughtful practitioners felt that if the question ever did get to the Court of Appeals, there was grave danger lest the decision of the Appellate Division in the Cutler case be overruled. Furthermore, the courts uniformly held in construing Section 768 of the Code that the defects or insufficien- cies in the papers or proceedings therein referred to did not include a defective complaint; and it was held that if the complaint failed to state facts sufficient to constitute a cause of action, or a proper cause of action in connection with one of the provisional reme- dies in question, and the complaint was required by law, then the motion to vacate would have to be granted, as permission to serve an amended complaint could only be granted to the plaintiff upon the making of a special separate motion therefor at Special Term (Beinboth v. Ederheimer, 134 N. Y. Supp. 16). We thus find that defects and insufficiencies or mis- takes, defects, omissions and irregularities in provi- sional remedy papers, naturally fall into three classes : (1) defects of a formal nature such as the omission to state in the order the ground of arrest, attachment or injunction as required by Section 821 of the Civil Practice Act; (2) omissions of necessary evidentiary matter in the affidavits or the defective showing of evidentiary matter; and (3) the use of a complaint which is defective either because it entirely fails to state facts sufficient to constitute a cause of action, PROVISIONAL REMEDIES. 175 or which is defective because it does not state the kind of a cause of action required by the sections of the law applicable to the particular provisional remedy in question. To develop the problem a bit further, it is important to bear in mind that in some instances a complaint is required, as where an order of arrest is obtained under subdivisions 7, 8, or 10 of Section 826 of the Civil Practice Act or Section 827 of the Civil Practice Act, or where an injunction is obtained under Section 877, when the right thereto depends upon the nature of the action; in other cases the inclusion of a complaint is unnecessary and it may be regarded as surplusage. To make this point clear you will observe that a complaint is required under subdivisions 7, 8, and 10 of Section 826, because in each of those subdivisions the words "where it is alleged in the complaint" are to be found. A similar provision is contained in Section 877 as to the grant- ing of an injunction pendente lite, when the right thereto depends upon the nature of the action as such section provides, "where it appears from the com- plaint that the plaintiff demands and is entitled to a judgment against the defendant restraining the com- mission or continuance of an act." The argument in connection with Section 827 is based upon the phrase "defendant may also be arrested in an action wherein the judgment demanded requires the performance of an act." Without a complaint, it has been held that it is impossible to know with certainty what the "judg- ment demanded" is (Lichstrahl v. Lichstrahl, 38 Misc. 331). I may say in passing, that there was considerable doubt under the Code as to when a complaint was necessary and when it was not in connection with the 176 CIVIL PRACTICE ACT LECTURES. various provisional remedies and the law was to an extent in a state of uncertainty. Even in the instance where a specific subdivision of the arrest sections con- tained the provision "where it appears in the com- plaint" there were decisions holding that the com- plaint was not necessary (Vandeiveghe v. Schwartz, 187 App. Div. 219; contra, Engelhardt Co. v. Ben- jamin, 2 App. Div. 91). As to attachments it seems very plain that a complaint is not required. Eeturning now to the main problem, the question is, how is the plaintiff to overcome defects of the three classes above mentioned under the Civil Practice Act. By tracing down Section 768 of the Code we find that it is now supplanted by Section 105, accord- ing to the footnote of the Committee and Section 105, as you will recall, provides generally, that at any stage of an action a mistake, omission, irregu- larity or defect may be corrected or supplied in the discretion of the court, and it is further provided that if the mistake, omission, irregularity or defect does not affect a substantial right of any party, then such mistake, omission, irregularity or defect must be dis- regarded. If this Section 105 stood alone the situa- tion would seem to be very simple as that section is not restricted to any particular phase or proceeding in an action and would seem just as applicable in con- nection with a motion to vacate a provisional remedy as in connection with any other application to vacate an order or otherwise. If Section 105 stood alone, I should be clearly of the opinion that the courts under the Civil Practice Act had ample power to either dis- regard the defect, which would no doubt be the proper practice where the defect is of a formal nature as above described, or to permit the defect or omission to PROVISIONAL, REMEDIES. 177 be supplied in a proper ease, whether it related to evidentiary matter or to a defective complaint. The problem is complicated, however, in connection with the provisional remedies by Section 822 and also by any other section, to which I shall refer in a moment. Section 822 provides as follows : "If the application to vacate be without notice, it shall be founded and heard only on the papers on which the order or warrant was granted. If the application to vacate be to the court or a judge thereof, upon notice, the provisions of this act shall not prevent the court or judge, in furtherance of justice, from allowing new proof, in behalf of the party opposing the application, to supersede or supply defects in the original proof, though the application to vacate be founded only on the papers on which the order or warrant was granted. Nothing contained in this act shall prevent the court, by order granted on motion, from directing that the order or warrant and recitals therein be amended to conform to the proof. The court or a judge thereof to which or to whom an application to vacate the order or warrant is made upon notice, may permit such an amendment without notice, by a direction in the order determining the application. ' ' You will observe that this section in no sense appears to authorize the courts, upon the hearing of a motion to vacate an order or warrant, to permit the amend- ment of formal defects or to permit the service of amended pleadings, but merely "to supersede or supply defects in the original proof." Now, I sup- pose the word "proof" is to be taken in its original meaning and thus applies to what we may characterize as evidentiary matter submitted in support of the original application for a provisional remedy. The only other matter referred to in Section 822 is contained in the general statement at the end of the section that nothing shall prevent the court from amending the order or warrant and recitals to con- form to the proof ; and the last sentence empowers the court or judge to "permit such an amendment with- 12 178 CIVIL PRACTICE ACT LECTURES. out notice." The words "such an amendment" no doubt refer to an amendment conforming the order or warrant and the recitals therein to the proof. As we thus have a special section relating to defects or omissions of evidentiary matter, it would seem very clear that Section 105 and Section 822 must be con- strued together and that Section 105 is necessarily limited by the provisions of Section 822 which are applicable particularly to supplying new proof in sup- port of a provisional remedy. Accordingly, I take it that if a motion to vacate an order or warrant is made, based upon the claim that the plaintiff has omitted certain essential evidentiary matter or based upon the claim that the evidentiary matter contained in the plaintiff's affidavits is insufficient, then pursuant to the terms of Section 822, the plaintiff should ask for an adjournment of the motion to vacate and an oppor- tunity to file supplemental affidavits which shall supply the defect or omission. Also where the defect relates to the form of the order or warrant and the recitals therein, the court is empowered by Section 822 to con- form the order or warrant and the recitals to the proof. Turning to the matter of the complaint, we find in connection with arrests that the old conflict as to when a complaint must be used and as to when it need not be used in support of an application for an order of arrest is resolved by Section 833, which now contains the following new provision: "Where a specific allegation in the complaint is necessary, by statute, to an arrest of the defendant, the complaint or a copy thereof or a propdsed amended complaint must be produced." Then the plaintiff's rights, in the event that by mis- take or inadvertence he shall have prepared a defec- PROVISIONAL REMEDIES. 179 tive complaint, are safeguarded by Section 843 which is also entirely new and which provides as follows: "The service of a complaint which fails to set forth a cause of action in which an arrest is authorized or an allegation essential to the right of arrest shall be ground for vacating the order of arrest, subject to the power of the court, upon plaintiff's motion, at any time, to permit the complaint to be amended, to sustain the order, with or without terms. Before the determination of a motion to vacate an order of arrest, the court or judge hearing the motion may permit the plaintiff, without notice, to amend the complaint, to sustain the order." It is a most significant fact that in connection with injunction and attachment there is no provision in the Civil Practice Act similar to Section 843 relating to arrests. What then is the situation? While rather unfor- tunate, it seems to me that the inclusion of a special section giving the court the power to permit the ser- vice of an amended complaint to sustain an order of arrest and the omission to include a similar provision with reference to injunctions is susceptible of only one interpretation, namely, that where the plaintiff ob- tains a temporary injunction order under Section 877 of the Civil Practice Act, in which event it is well settled by decisions construing similar language used in the Code, that a complaint is necessary, then if the complaint is defective and the motion is made to vacate the injunction order, the courts are without power to permit the plaintiff to serve an amended complaint to sustain the order. The result is unfortunate, because had Section 843 been omitted entirely and had Section 822 been omitted entirely, it would seem to be very plain that under Section 105 the courts would have been authorized in all cases to permit amendments and the filing of supplemental papers generally in sup- 180 CIVIL PRACTICE ACT LECTURES. port of the order or warrant where the interests of justice required such action to he taken. As to attachments, the question concerning the use of a defective complaint does not seem to arise, because a complaint is not required and it has been held that if a complaint is used and it proves to be defective, this is not a ground for vacating the warrant of attach- ment if the affidavit submitted in support of the origi- nal application contains sufficient evidentiary matter to make out a cause of action {Shepherd v. Shepherd, 51 Misc. 418, 421). I have taken considerable time on this subject be- cause it is one of great practical importance and be- cause in the few matters which have already come before the courts since the Civil Practice Act took effect there is a good deal of confusion in the decisions as to whether the permission to the plaintiff to serve supplemental papers or to amend is given under Sec- tion 822 or Section 105. When the defect is one of proof, 822 is the section applicable ; when it is a matter of conforming the order or warrant or recitals to the proof contained in the affidavits, then again Section 822 is a proper section; when it is a question of asking permission to serve an amended complaint, and a com- plaint is required, the only section available is Section 843, relating only to arrests, and in view of this specific section it would seem that the courts are not authorized even by the broad language of Section 105 to permit the service of an amended complaint to sustain a pro- visional remedy other than arrest ; where the mistake, defect, omission or irregularity is one of any other name, nature and description then Section 105 seems to be plainly applicable. Now let us turn to the specific provisions relating in PROVISIONAL REMEDIES. 181 detail to the particular provisional remedies. We find that in Section 826, which is supposed to be merely a repetition in different form of former Section 549 of the Code, the changes merely consist in the rearrange- ment of the subject matter and the placing of the various kinds of actions in ten different subdivisions instead of in four separate subdivisions as was the case in Code Section 549. I have been unable to find anything in Section 826 of the Civil Practice Act to indicate that any change has been made, but it seems necessary where applying for provisional remedies under the Civil Practice Act to read the new language carefully in connection with each specific case as it arises. I have already found a number of instances where although no apparent change had been made, still where the language as rewritten was applied to the facts of specific cases, it seemed as though some change had been effected whether deliberately or inadvertently. In Section 838 which provides generally that the plaintiff may fix a time within which the defendant must be arrested, the section provides that the de- fendant cannot be afterward arrested under the same order "unless the time be extended by the court, for cause." This amendment was necessary in order to bring Section 838 in harmony with Section 98, which I discussed under the general subject of incidental practice. I am afraid the transfer of many of the provisions formerly contained in the Code with reference to the confinement of civil prisoners and the jail liberties generally, to various portions of the Prison Law and the Civil Rights Law, will only lead to confusion and inconvenience. It may be that as a matter of strict 182 CIVIL PBACTICE ACT LECTURES logic the rules regulating prisoners and the jail liber- ties should be in the statute relating to prisons and to civil rights, but I have always felt that it would be much more convenient to the bar in general, and should meet no substantial opposition from any source, to place all the sections relating to arrest and discharge from arrest, as well as the provisions of law with reference to contempts and the punishment there- for in the Civil Practice Act. If an injunction order is obtained, served and disobeyed, it would seem as though common sense, as well as ordinary convenience, would suggest retaining in a single practice manual the provisions of law which beyond any question re- late to procedure and which define the steps to be taken in order to punish the delinquent party for his contempt of court. I am surprised that no attempt was made by the Committee which formulated the Civil Practice Act, to make the provisional remedy of arrest either more effective or less effective. As the matter now stands and as it stood for many years under the Code, the provisional remedy of arrest is practically a dead letter, except in those cases where shrewd and un- scrupulous lawyers are able to so arrange the circumstances under which the original arrest is made as to blackmail the defendant into a settlement. There is only one instance in which the bail bond required by law is of any real value to the plaintiff and that is the isolated instance where the defendant is arrested because he is sued for the conversion of a chattel and has been guilty of concealing, remov- ing and disposing of the same so that it cannot be found or taken by the Sheriff. In this particular instance, subdivision 2 of Section 849 provides that PROVISIONAL REMEDIES. 183 the bond shall contain a clause to the effect "that the defendant will deliver it (the chattel) to the plaintiff, if delivery thereof is adjudged in the action and will pay any sum recovered against him in the action." If the bail bond in every case contained a similar provision that the defendant would pay any judgment recovered against him in the action then the remedy of arrest would have some punch behind it. Certainly, if it is proper to compel the defendant to put up such a bail bond where he is guilty of conceal- ing the chattel there would appear to be at least equal reasons for requiring such a bond where he is sued for fraud and deceit or for embezzlement or fraudulent misapplication of funds as provided in Section 826. Furthermore, the provisions with reference to the jail liberties seem to be much too liberal and the rule which permits a man who is confined to the jail liber- ties pursuant to a bond for that purpose, to go beyond the limits and avoid imposing a liability upon the sureties where the defendant returns within the limits before an action is begun on the undertaking, is noth- ing short of absurd. It may be that the provisional remedy of arrest is not compatible with our modern institutions and ways of doing things. It may be that the old days of im- prisonment for debt, as the expression went, are gone forever and that an enlightened public policy is op- posed to imprisonment of any kind because of the non- payment of a sum of money. If that be so, then the provisional remedy of arrest should be entirely abol- ished. As it now stands it is useless in the vast major- ity of cases, and the provisions contained in the Civil Practice Act and the various statutes to which former sections of the Code have been transferred are full of 184 CIVIL PKACTICB ACT LECTURES. inconsistencies, technicalities and anomalies, with the result that it would he much hetter to have the remedy removed entirely than to permit it to remain in its present unsatisfactory state. The law should be either simplified and made effective or repealed. In connection with the temporary injunction order the basic provisions of the Code on this subject are preserved intact (Sections 876-9). In Section 878, how- ever, the words "by affidavit," are omitted in order to make the requirement as to the proof of extrinsic facts consistent with the general section (Section 816) which has been already discussed. Following out this same idea Section 881 now provides "the order may be granted upon proof that sufficient grounds exist there- for." With reference to the undertaking to be filed in con- nection with the temporary injunction order, the sec- tions on this subject have been generally amended so as to conform to the new provisions on the subject of bonds and undertakings generally which have already been discussed. Similar changes have been made in connection with attachments and there is a new section (Section 909) which provides: ' ' The manner of attesting and issuing the warrant, whether granted by the court or a judge, may be regulated by rules." The general procedure and indeed in most instances the very details of the Code practice have been re- tained as to each of the several particular provisional remedies. LECTURE IX. Trial Practice. There have been several very important changes con- cerning trial practice which relate to the effect of mo- tions for a dismissal and for the direction of a verdict and also to the amendment of pleadings at the trial. The first of these changes has been the subject of considerable discussion at the bar and is Section 457a, which provides "the judge may direct a verdict when he would set aside a contrary verdict as against the weight of evidence." Passing for the moment some of the interesting technical questions which this new section, which was added by the Legislature in 1921, suggests, the most discussed and perhaps the most important question concerns its constitutionality. It has been suggested by some very eminent members of the bar that this section violates the constitutional guarantee of a jury trial. In my opinion this contention is wholly without foundation. It seems to me a matter of plain common sense that if the court is given the power to set aside a verdict as against the weight of evidence, and such an order setting aside a verdict has never been sup- posed to in any sense violate the constitutional right of a party to a jury trial, then giving the court the power to pass upon the weight of evidence before the verdict cannot in any way be regarded as a violation of fundamental law. Surely the result to the defeated litigant is identical in the two cases; and it seems quite unlikely that modern courts will strain a point to declare such a reasonable and workable rule uncon- stitutional. This is particularly true when it is borne 185 186 CIVIL PRACTICE ACT LECTURES. in mind that the attitude of courts of last resort toward constitutional questions has been one of increasing liberality of construction. By thus stating my own opinion in this matter I do not wish to mislead you into thinking that there is no substance whatever to the claim that Section 457a is unconstitutional. The question is really one of con- siderable doubt and the claim of unconstitutionality rests fundamentally upon the decision of the Court of Appeals in 1901 in McDonald v. Metropolitan Street Railway Co., 167 N. Y. 66. In that case, although the plaintiff had presented evidence which made out a prima facie case in his favor, the proof produced by the defendant was so strong that the trial court di- rected a verdict in favor of the defendant. The Court of Appeals held that the direction of a verdict was not justified and laid down the rule that where there was any issue of fact presented by the evidence, it was the duty of the trial court to submit that issue to the jury, even in spite of the fact that the state of the evidence was such as to warrant the court in setting aside a contrary verdict. Had the Court of Appeals merely stated this rule as one of evidence or trial practice, there would be little basis for the contention, which is now being made, that Section 457a of the Civil Practice Act, is unconstitutional. The Court of Appeals in the McDonald case, however, went further and plainly intimated in various portions of the opin- ion that the reason upon which the decision was based was largely the constitutional guarantee of a jury trial. There is, however, an important technical as well as practical aspect of Section 457a. In the first place, it is extremely improbable that, merely because of this TRIAL PRACTICE. 187 new provision, the trial judges will assume any more responsibility as to questions of fact than they have assumed in the past. Where the question is one of doubt, one may feel assured that the average trial judge will prefer to follow the old system of sub- mitting the case to the jury and then later, and in a more leisurely manner, calmly consider the question of whether the verdict should be set aside as against the weight of evidence. In the second place, the application of this rule to specific instances is not as clear as one might suppose. Take for example a case where the plaintiff's case is established by the testimony of interested witnesses and the defendant does not introduce any evidence on his behalf, but rests his case immediately after the plaintiff's last witness is called. The well settled rule under the Code was that as the plaintiff's case was established by the testimony of interested witnesses, the credibility of these witnesses was itself a question of fact which was required to be submitted to the jury. Is this rule to be regarded as changed by Section 457a? My own conclusion in this matter would be that the rule requiring such a case to be submitted to the jury remains unaffected by Section 457a; and yet, it would no doubt be possible to assume a case where, although the plaintiff's case depends partly upon the interested testimony of the plaintiff, this testimony is so sustained and corroborated by documentary evidence and other conceded facts as to make a record which would justify the court in the event that the jury should render a verdict for the defendant to set the verdict aside. In this particular case I apprehend that the trial court would be justified in directing a verdict for the plain- tiff under Section 457a. 188 CIVIL PRACTICE ACT LECTTJKES. Then there is also to be considered what was known as the scintilla rule under the Code. Originally, where even the slightest evidence existed the courts were re- quired to submit the case to the jury. Later, it was held that if the evidence did not amount to more than a mere scintilla the case could be decided as matter of law. This led to a number of decisions on the subject by the Court of Appeals which rested upon such fine distinctions as to leave most lawyers in doubt as to the exact state of the law on the subject. I have read the many decisions of the Court of Ap- peals on this subject, within the last four or five years, with great care, and I must say that my own feeling about the matter is one of grave doubt and uncer- tainty, and I have never been able to convince myself that I entirely understood just what the real meaning of the scintilla rule was, as developed by these recent decisions. Whatever doubt may have existed prior to the addi- tion of Section 457a to the Civil Practice Act, it seems quite plain that the very purpose of this section is to do away with the doubts and uncertainties which sur- rounded the scintilla rule, and to formulate a provision which should be too clear for misunderstanding and which would lead to a more prompt and expeditious method of finally disposing of law suits. Turning now to Section 482, we find very radical changes as to the effect of motions for the dismissal of the complaint. The Section is short and is as follows : "A final judgment dismissing the complaint before the close of the plaintiff 's evidence does not prevent a new action for the same cause of action, unless it expressly declares that it is rendered upon the merits. A dismissal of a complaint or a counterclaim at the close of the plaintiff's or defendant's evidence, as the ease TRIAL PRACTICE. 189 may be, or a dismissal of a complaint or counterclaim at the close of the whole evidence, is a final determination of the merits of the cause of action and bars a new action between the same parties or their privies for the same cause of action unless the court shall dismiss without prejudice." The first question for us to consider in connection with these new provisions is as to whether the Legis- lature intended to make any change in the fundamental basis for a non-suit on the one hand and a dismissal of the complaint on the merits on the other. I do not believe any such change was intended ; and it seems to me that the trial court will be entitled to dismiss the complaint without prejudice or to non-suit the plaintiff where he has merely failed to prove a case, whereas, a dismissal on the merits may be made only where it appears from the evidence already taken that the plain- tiff in fact has no case. In other words, if an action is brought for breach of a contract and the plaintiff at the trial proves the making of the contract and the breach thereof by the defendant together with the en- suing damage, but by reason of not calling or produc- ing the necessary witnesses the plaintiff is unable to prove the due performance by him of certain condi- tions precedent contained in the contract, it seems very plain that whether the motion to dismiss be made be- fore the end of the plaintiff's case, or at the end of the plaintiff's case, or at the end of the whole case, the motion should be merely for a dismissal without prejudice and if the court should dismiss on the merits under such circumstances, such a dismissal would seem to present reversible error. Another case which frequently arises is one where an action is brought to recover for fraud and deceit and the plaintiff makes ample proof of the making by the defendant of the representations, their falsity, the intent to deceive and 190 CIVIL PEACTICE ACT LECTURES. the actual deceit, but fails to prove any damage. Upon this state of the evidence the court should non-suit the plaintiff, but it would not be proper to dismiss the complaint on the merits as the plaintiff might at a new trial be able to produce the necessary proof of dam- age, which in actions of this character is an essential part of the cause of action itself. Now, considering the first sentence of Section 482 we find two entirely new and quite important provi- sions. In the first place, it is directly contemplated that the court may dismiss the plaintiff's complaint "before the close of the plaintiff's evidence" although under the Code such a motion was not available to the defendant until the plaintiff had rested. In the second place it is provided that where a motion is made in terms "to dismiss the complaint" before the end of the plaintiff's case, without comment or qualification, then the granting of such a motion is a mere non-suit. It is, however, clearly contemplated that a situation might arise making it appropriate for the defendant, even before the close of the plaintiff's case, to move for a dismissal of the complaint on the merits, the rule being that in such event, counsel for the defendant must so express himself in making his motion as to plainly state that the motion is made on the merits. A case where such a motion on the merits was proper recently came to my attention. The action was one in equity for specific performance of a con- tract to sell a parcel of real estate located in Brooklyn. The contract had been made in 1917 and the purchaser had been present at the closing date ready to perform, but the seller had defaulted. Instead of promptly en- forcing his rights, however, the buyer waited until 1919 when the value of the property had almost TRIAL PRACTICE. 191 doubled and he then brought his action in equity for specific performance. In the course of the cross- examination of the plaintiff the facts concerning the enhancement in value of the property were fully de- veloped and it became very plain, even at that early stage of the case, not merely that the plaintiff was not making out a case, but that he in fact had no case at all. Upon these facts appearing the trial court stated to counsel or the defendant that he would enter- tain a motion to dismiss on the merits and the motion was made and promptly granted. Turning now to the second sentence of Section 482, we find that the provisions contained therein, while perhaps of a formal and technical nature, are provi- sions of the greatest importance to the trial lawyer. Under the Code, if counsel for the defendant intended to make a motion addressed to the merits of the case, it was well settled that his motion was normally one for the direction of a verdict, although he could, after both sides had rested, make a motion in terms for the dis- missal of the complaint on the merits. The effect of these two motions was substantially identical. Pur- suant to the provisions of the second sentence in Sec- tion 482, however, a mere motion on behalf of the de- fendant for a dismissal of the complaint is presumed to be a motion addressed to the merits unless expressly stated to be made "without prejudice." Of course, as pointed out a moment ago, the trial court may not even now dismiss the complaint on the merits if the state of the evidence is such as to warrant only a non-suit. On the other hand, it would be most unfortunate, if due to a misunderstanding of the new provisions of the Practice Act, counsel for the plaintiff were put to the expense of an appeal in order to estab- 192 CIVIL PRACTICE ACT LECTURES. lish his right to bring a new action for the same cause. To be explicit, let us suppose that counsel for the de- fendant at the close of the plaintiff's case, or even at the close of the whole case, makes a motion "to dis- miss the complaint." The duty of counsel for the plaintiff under such circumstances, would plainly be to call the attention of the trial court to the fact that the state of the evidence did not justify a dismissal on the merits and he should suggest that the motion be changed so as to merely amount to a dismissal "with- out prejudice." No doubt counsel for the defendant would consent to such modification of his motion and in any event, whether he consented or not, the proposi- tion would be properly presented to the trial court for consideration and the rights of the plaintiff fully safeguarded at the trial. Otherwise the granting of the motion to dismiss would be presumed to be on the merits and the only way the plaintiff could again litigate the matter would be to first appeal to the Appellate Division for a modification of the judgment of dismissal, or to move before the same justice for a modification of the record if the mistake were dis- covered in time. In view of the radical changes accomplished by Sec- tion 457a and Section 482, the question has been dis- cussed as to whether or not these sections or either of them make any change in the law with respect to the situation presented at the trial, where at the close of the case both sides move for the direction of a verdict. The answer to this question depends entirely upon the nature of the evidence before the court. If there is a substantial conflict in the evidence on some material point, then either of the parties is entitled to with- draw his motion for a direction of a verdict and re- TRIAL PRACTICE. 193 quest that the case be submitted to the jury. This was the rule under the Code as established by the more recent eases {Brown Paint Go. v. Reinhardt, 210 N". Y. 162), and there seems no reason to believe that such a result would in any way be changed by either Section 457a or Section 482 of the Civil Practice Act. On the other hand, if the evidence in support of the plaintiff's case is so overwhelmingly strong as to war- rant the court in setting aside a verdict for the de- fendant, then whether the plaintiff alone moves for the direction of a verdict or whether both sides move for the direction of a verdict, the court is authorized by Section 457a to direct a verdict for the plaintiff. There is another very interesting phase of trial practice which perhaps should be discussed in connec- tion with Section 482. I refer to the right of the plain- tiff before the case has been disposed of to volun- tarily move for permission to discontinue. This is an application which it has always been the right of a plaintiff to make at any time before the close of the case and in view of the stringent requirements and presumptions contained in Section 482, it is well to have this motion for leave to discontinue in mind as a possible manoeuvre. Let us suppose, for ex- ample, that toward the end of the plaintiff's case the trial court has indicated, by certain remarks, a disposition to dismiss the complaint on the merits. Is there anything to prevent the plaintiff from thereupon moving for leave to discontinue upon pay- ment of costs? I think not. This application seems plainly to be open to the plaintiff where he fears a dis- missal on the merits and believes he can make a better presentation of the case and produce much stronger 13 194 CIVIL PRACTICE ACT LECTURES. evidence if the action is begun over again and a new trial is thus obtained. It does not seem as though such an application were available, however, after the defendant has made his motion for a dismissal of the complaint. Surely with one motion pending before the court and still undeter- mined, it is not possible for another party to the action to interpose a new motion which should destroy the effect of the motion already pending before the court. While this might be done, if counsel for the defendant consented to the withdrawal of his motion to dismiss, it is perfectly plain that he would not give any such consent, with the result that when the motion to dis- miss has once been made, it is no longer open to the plaintiff to move for leave to discontinue. There is another phase of trial practice which has been changed by the Civil Practice Act and the Rules of Civil Practice which will, as a practical matter be of much greater importance to lawyers generally than even Section 457a or Section 482. I refer to the new provisions concerning amendments at the trial, such amendments being provided for by Sections 434, 105, 111 and also by Rule 166. Section 434 merely purports to lay down certain rules for the determination of a variance between the pleading and proof and is as follows : "A variance between an allegation in a pleading and the proof is not material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defence upon the merits. Where the variance is not material, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs. Where, however, the allegation to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, within this section, but a failure of proof." The power to amend a pleading at the trial so as TKIAL PBACTICE. 195 to conform the pleading to the proof or otherwise is contained in Section 105 which has already been dis- cussed and which provides generally with reference to the correction of mistakes, omissions, irregularities or defects or where a substantial right of any party shall thereby not be prejudiced, for the entire disregard of such mistake, omission, irregularity or defect. Section 111, as you will recall, provides for the amendment of the pleadings or other papers where a mistake has been made in the prayer for relief, this section giving the court authority to amend the plead- ings at the trial so as to demand the proper remedy appropriate to the facts as "pleaded or alleged, or proved. ' ' The clearest and most important matter with respect to amendments, however, is found in Eule 166 which is so important that I shall read it in full, as follows : "1. If a pleading be defective, whether for failure to state a cause of action, or a defense, or otherwise, and objection thereto has not been raised before the trial, the judge may permit it to be amended. If evidence be offered which is relevant to the controversy between the parties, but which is not admissible because the facts to the proof of which it is addressed are not sufficiently pleaded, or in case of variance between pleading and proof, the judge may permit an amendment conforming the plead- ings to the proof. In granting any amendment hereinbefore pro- vided for, the judge may adjourn the trial or direct a new trial, and impose terms and conditions in his discretion. "2. A complaint or counterclaim need not be dismissed on the trial because of failure or a defect in proof, if it shall be made to appear that the evidence to supply the defect can be produced. In such case the judge may thereupon receive such evidence or adjourn the trial, or direct a new trial, on such terms as in his discretion shall be proper." The effect of Eule 166 when read in connection with Section 105 and Section 434 is to entirely repeal and change the rule of the Code that the court at the trial was only authorized to permit an amendment of the 196 CIVIL PRACTICE ACT LECTURES. pleadings which did not substantially change the cause of action or defense. It will be recalled that where the amendment sought to be made did change substantially the cause of action or defense, the trial court was re- quired to withdraw a juror so as to give the party who had made the mistake in pleading an opportunity to make a motion at Special Term for permission to serve an amended pleading in due course. The full effect of these new provisions is perhaps best understood by considering a few of the instances where the courts denied the power to amend at the trial under the Code. There is one Appellate Division deci- sion which holds that in an action to recover for breach of contract where the complaint contained an allegation that the plaintiff had duly performed all the conditions precedent on his part to be performed, the plaintiff was not entitled to amend at the trial so as to allege a waiver of performance instead of due performance. While it might, in a strictly technical sense, be accurate to say that this was a substantial change of the cause of action, it is very plain that the ends of justice did not require that a juror be withdrawn and the plaintiff compelled to make a separate motion at Special Term for permission to serve an amended complaint, to which the defendant in due time would serve an amended answer. Under Rule 166, the trial courts are now fully authorized to permit an amendment of any pleading at the trial, whether the amendment substantially changes the cause of action or defense or not. This new rule is bound to aid considerably in clearing up congested Trial Term or Special Term calendars and is in every way a desirable and salutary change in the practice. Nor are the rights of any party to the case in any TRIAL PRACTICE. 197 way prejudiced by thus enlarging upon the power of the trial court, as it is provided that in granting any amendment, the judge may adjourn the trial or direct a new trial or impose terms and conditions in his discretion. One or two cases have already arisen which throw some light upon the matter. In Feizi v. Second Rus- sian Insurance. Co., 199 App. Div. 775, the trial court permitted the plaintiff to amend his complaint in cer- tain particulars which the defendant's counsel claimed materially changed the cause of action. In view of the facts presented by counsel for the defendant the court in permitting the amendment adjourned the trial for two months. This action of the trial court was sus- tained by the Appellate Division, which properly held that Eule 166 was clearly applicable to actions pending prior to October 1, 1921. The other decision of the Appellate Division, First Department, in SteMi Silks Corporation v. Kleinberg, 200 App. Div. 16, which held that a motion for permis- sion to serve an amended pleading could be granted upon condition that the ease retain its place upon the calendar, has already been referred to. No doubt in the average case where the plaintiff desires to amend his complaint at the trial, counsel for the defendant will oppose the application and claim surprise and attempt to insist upon a mistrial. Under the present rules 'the trial court has the power to ex- amine into the facts and make such decision as the facts and the interests of justice appear to require. In many cases, no doubt, the trial courts will insist upon a prompt disposition of the case in spite of the mere assertion of counsel for the defendant that he has been surprised and is not fully prepared to meet the issue 198 CIVIL PRACTICE ACT LECTURES. tendered by the complaint as amended. In other cases where the claim of surprise is shown to have some actual foundation, the trial court may grant a short adjournment or may withdraw a juror and grant a sub- stantial adjournment, as the circumstances make necessary. Application of provisions of Civil Practice Act and Rules of Civil Practice to Municipal Court of New York City and City Court of New York City. A number of very interesting questions are bound to arise in connection with the general subject of how far and to what extent the provisions of the Civil Practice Act and the Eules of Civil Practice are applicable to the various inferior courts throughout the state and particularly to the Municipal Court of New York City and the City Court of New York City. At the outset, it is well to understand that the problems presented in connection with these two inferior courts are entirely separate and distinct. I mean by this that the ques- tion as to whether any particular provision of the Civil Practice Act is applicable to the Municipal Court and whether any particular remedy provided in the Civil Practice Act is available for use therein, is entirely distinct from the question as to whether the same pro- vision or remedy is applicable or available in the City Court of New York City. There is one phase of the problem, however, which is fundamental and which applies equally to both of these courts. That is the question of jurisdiction, and it requires no extended argument to convince one that there are a great many provisions and remedies set forth and described in the Civil Practice Act and the Eules of Civil Practice which cannot possibly be avail- APPLICATION TO N. Y. MUNICIPAL AND CITY COURTS. 199 able either in the Municipal Court or in the City Court because of the limited jurisdiction of those two courts. The limitation is not so much the limitation to claims involving one thousand dollars in the Municipal Court and two thousand dollars in the City Court, as it is the limitation of jurisdiction to legal as distinct from equitable remedies. While it is true that both the City Court and the Municipal Court have a certain equitable jurisdiction, that jurisdiction is limited to the foreclosure of mechanics' liens (City Court Act, Section 18, subdivision 2; Municipal Court Code, Sec- tion 6), and in the Municipal Court to dispossess pro- ceedings which are of course of an equitable nature and where the jurisdiction of the Municipal Court is un- limited. As to mechanic liens, even the equitable juris- diction involved in these actions is restricted in the Municipal Court to cases involving not more than one thousand dollars, and in the City Court to cases not involving more than two thousand dollars. Generally speaking, these two courts have practically no equitable jurisdiction in the true sense of the word and therefore all those provisions of the Civil Practice Act and the Eules of Civil Practice which relate to suits in equity, to matrimonial actions, to state writs and mandamus, certiorari and prohibition orders, cannot by any pos- sibility be applicable either to actions or proceedings in the Municipal Court or in the City Court. Furthermore, in certain instances such as the de- claratory judgments, it is specifically provided in the Civil Practice Act that the jurisdiction in such matters is to be exercised solely by the Supreme Court (Section 473). Passing now to the more general provisions we find that the question is regulated with respect to the City 200 CIVIL PRACTICE ACT LECTURES. Court by Sections 79 and 80 of the New York City Court Act, which are so important that I shall read them in full : "See. 79. Except as otherwise provided in this act, the pro- visions of law governing the practice and procedure in the follow- ing matters do not apply to an action or special proceeding in the city court of the city of New York, or before a justice thereof or to any proceeding therein: 1. The cases in which an order directing the service of a sum- mons upon a defendant by publication may be made; 2. The granting of an injunction order in a case where the right of the injunction depends upon the nature of the action; 3. Security upon the granting of an injunction order to stay proceedings in an action; 4. The facts to be shown by affidavit to the satisfaction of the justice granting a warrant of attachment; 5. Directing references and appointing referees." ' ' Sec. 80. Except as in this act or otherwise specially provided the practice, pleadings, forms and procedure in the city court of New York shall conform, as nearly as may be, to the practice, pleadings, forms and procedure existing at the time in like causes in the supreme court, any statutory limitations, heretofore enacted, to the contrary thereof notwithstanding; but this act shall not be held to increase or diminish the jurisdiction of the city court of the city of New York as existing immediately prior to the time this act takes effect." It is a very significant fact that Section 79 specifi- cally makes applicable "the provisions of law" govern- ing the practice and procedure in the Supreme Court generally, except as specially excluded; and there is an entirely separate section containing the general pro- vision that the practice, pleadings, forms and procedure in the City Court shall conform as nearly as may be to the practice, pleadings, forms, and procedure in the Supreme Court. With respect to the City Court, accordingly, the matter is quite simple and with the exception of the matters secifically excluded by Section 79, and the other matters which are eliminated because of the APPLICATION TO N. Y. MUNICIPAL AND CITY COURTS. 201 limited jurisdiction of the court, it may be said that most of the details of practice and procedure in the City Court follow the practice as set forth in the Civil Practice Act and the Rules of Civil Practice. Accord- ingly, examinations before trial may be had pursuant to notice as provided in the Civil Practice Act ; motions for summary judgment may be made pursuant to Rules 113 and 114; motions for consolidation and severance may be made pursuant to Sections 96 and 97 of the Civil Practice Act; Sections 105 to 112 of the Civil Practice Act with reference to mistakes, defects, omis- sions and irregularities are available, as well as the provisions concerning tenders and offers of judgment. These instances are enumerated merely by way of illustration as it is not thought necessary to attempt a detailed specification of all the provisions of the Civil Practice Act and Rules which are available in the City Court. There is one further point about the City Court which is one of great importance. In rearranging the subject matter which had formerly been contained in the Code for the purpose of constructing a separate New York City Court Act, there was omitted entirely the former provision of the Code that appeals from a final judgment of the City Court to the Appellate Term must be made within ten days. The result of this omission was to change the rule as to such appeals to •the Appellate Term from the City Court, so that an appellant now has thirty days to appeal from a final judgment of the City Court (Waddell v. Madden, App. Term, First Dept., N. Y. L. J., Dec. 16, 1921). It is to be noted that Section 73 of the New York City Court Act provides as to interlocutory judgments and orders that the appeal be taken within ten days after the ser- 202 CIVIL PRACTICE ACT LECTURES. vice of a copy of the judgment or order appealed from and a written notice of the date of the entry thereof. The problem is more complicated concerning the Municipal Court, where the matter is largely regulated by Section 15 of the Municipal Court Code, which pro- vides as follows: "Except as otherwise provided in this act or in the rules, the practice, pleadings, forms and procedure in this court shall con- form, as nearly as may be, to the practice, pleadings, forms and procedure existing at the time in like causes in the supreme court, any statutory limitations, heretofore enacted, to the eontrary thereof notwithstanding. ' ' If this section were the only one involved, one might well reach the conclusion that the application of any specific provision of the Civil Practice Act or the Rules of Civil Practice to the Municipal Court could gen- erally be determined by merely examining the provi- sions of the Municipal Court Code on the subject and where the Municipal Court Code contained no specific provision governing the matter, then reaching the con- clusion that the Civil Practice Act was available. This simple method of disposing of the matter is not ade- quate as Section 15 of the Municipal Court Code was added after the statute had originally been formulated, and more particularly as the Municipal Court did not become a court of record until a number of years after the formulation of the original statute, at which time the Commission which drafted the present Municipal Court Code stated in its report that by making the court one of record, no real increase in the powers of the court was intended. This whole question was thoroughly discussed in March, 1916, in connection with the power of the Municipal Court to examine parties before trial, pursuant to the practice then in vogue under the Code. It was then held that no such APPLICATION TO N. Y. MUNICIPAL AND CITY COURTS. 20.5 power existed and the subject was very thoroughly reviewed by Mr. Justice Lehman, writing for the Ap- pellate Term of the First Department in Mitchell v. Schroeder, 94 Misc. 270, which was affirmed by the Appellate Division in 174 App. Div. 857, on the reasons stated by Mr. Justice Lehman in the Appellate Term. While admitting the question to be one of considerable doubt the conclusion was reached that the Municipal Court had no power to direct the examination of par- ties before trial as provided in the Code because such power not having been specified in the statute as here- tofore framed, it was thought that the mere change of the Municipal Court to a court of record, could not in- crease the powers of the court in any particular by implication or inference. It is a significant fact that after the decision in Mitchell v. Schroeder, the Legislature added to Section 27 of the Municipal Court Code, subdivision 4 thereof, which is as follows : "The deposition of a party to an action in this court or of a person who expects to be a party to an action about to be brought in this court may be taken at his own instance or at the instance of an adverse party, or by a eoplaintiff or codefendant at any time before or during the trial, in the same manner as such depositions are taken under the provisions of law applicable to like cases in the supreme court." and since this amendment, which took effect in Sep- tember, 1916, the power of the Municipal Court to examine parties before trial has been unquestioned. With the decision of Mitchell v. Schroeder in mind, what is the situation at the present time in connection with the Civil Practice Act and the Rules of Civil Practice? There are several very potent reasons for now adopting a different view of the matter. In the first 204 CIVIL PRACTICE ACT LECTURES. place, Section 1 of the Civil Practice Act specifically provides "this act shall be known as the civil practice act, and, except as otherwise expressly provided, shall apply to the civil practice in all the courts of record of the state." Furthermore, Chapter 902 of the Laws of 1920, which provided for the Convention representing the Judiciary and the Bar to Consider and Adopt Eules of Civil Practice, directed the con- vention "To formulate and adopt suitable rules of practice inconsistent with the judiciary law nor with the special practice act, adopted by this Legislature, which shall be binding upon all the courts in this state and all the justices and judges thereof, except the court for the trial of impeachments and the court of appeals. ' ' In view of these plain statutory enactments and in view of the fact that an entirely new scheme and sys- tem of procedure went into effect in this state on October 1, 1921, there is very excellent ground for the contention that the objections discussed in Mitchell v. Schroeder no longer exist. The result is that in order to determine at the present time whether a particular provision or remedy of the Civil Practice Act or the Eules of Civil Practice is available in the Municipal Court, it is only necessary to examine with care the specific provisions of the Municipal Court Code and if such specific provisions exist with reference to a par- ticular matter, then in that event, provisions on the same subject in the Civil Practice Act or the Eules of Civil Practice are not available, otherwise they are available and may be used. For the purpose of illustration it may be well to dis- cuss a few specific points in connection with Municipal Court Practice. As to examinations before trial, it can in no sense be said that the Municipal Court Code is silent on this subject as it provided in subdivision 4 APPLICATION TO N. Y. MUNICIPAL AND CITY COURTS. 205 of Section 27 that a party may be examined before trial. The practice with respect to such examination, however, is not particularly prescribed, so that it is quite clear that parties may be examined before trial in the Municipal Court pursuant to the service of a notice as provided in Section 290 of the Civil Practice Act and the other provisions of Article 29 of the Civil Practice Act, with reference to the examination of par- ties before trial, are also applicable. It is important to note, however, that Section 27 does not cover ex- aminations before trial generally so that there are a great many instances in which persons, other than parties, may be examined before trial in the Supreme Court and in the City Court, where similar examina- tions before trial are not available in the Municipal Court. That the method of taking the deposition of a party before trial pursuant to notice is available in the Municipal Court has been recently held by Mr. Jus- tice Lauer in Crowe v. Marsh Oarage Co., Inc. (N. Y. L. J., Jan. 24, 1922). Another subject of considerable practical importance is as to whether a motion for summary judgment under Eules 113 and 114 of the Eules of Civil Practice may be made in the Municipal Court. As the Municipal Court Code contains no provision whatever on this subject and as the old limitation discussed in Mitchell v. Schroeder has now been removed, it has been prop- erly held by the Appellate Term of the First Depart- ment in Rits-Carlton Restaurant £ Hotel Co. v. Bit- mars (N. Y. L. J., Apr. 20, 1922), that such motions are available in the Municipal Court. The opinion in the Ritz-Carlton Restaurant d Hotel Co. was written by Mr. Justice Guy and discusses in some detail the points brought out in Mitchell v. Schroeder. 206 CIVIL PRACTICE ACT LECTURES. There are many matters, however, which appear to he governed entirely by specific provisions of the Municipal Court Code. Thus Sections 79 and 127 cover the matter of joinder and severance of causes of action. In this respect the provisions of the Muni- cipal Court Code as to the original joinder of causes of action in the same complaint are even broader than the new provisions of the Civil Practice Act, as Sec- tion 79 of the Municipal Court Code permits a plaintiff to include in the same complaint any cause of which the court may have jurisdiction, so that all controver- sies between the parties may be finally disposed of in a single litigation. The Municipal Court Code contains its own special provisions as to the form of summons (Section 20), the service of process (Sections 21, 22), substituted ser- vice of the summons (Section 23), arrest, attachment and replevin (Sections 29-69) ; and in other matters such as general trial practice, it would not seem that the provisions of the Civil Practice Act and the Rules of Civil Practice were applicable. LECTURE X. Declaratory Judgments. While it is impossible to foretell the exact course oi' litigation in the future, it has been the prediction of many persons in a position to know the facts, that the provisions of the Civil Practice Act and the Rules of Civil Practice with reference to declaratory judg- ments will in time seriously change and perhaps revolutionize the course of litigation generally in this state. Before taking up the subject in detail, I wish to make a few general observations as to what the declaratory judgment is and as to its use in other states and countries. Under the Code all judgments were what is known as coercive. If an action was brought for a sum of money only and the plaintiff won the case, the judg- ment directed that execution issue therefor, which was another way of saying that by giving the proper direc- tion to the sheriff of the county in which any prop- erty of the defendant might be situated, the sheriff was thus authorized to forcibly take possession of such property and cause the same to be sold, the pro- ceeds to be used in payment of the judgment. This was, of course, direct coercion. On the other hand, in an equity case the plaintiff, if successful, obtained a decree directing the defendant to do or to refrain from doing a certain act or series of acts. If the defendant disobeyed the decree, then through the medium of con- tempt proceedings the hand of the law was laid heavily upon his person and he was incarcerated until such time as he chose to obey the court's mandate. This again was direct coercion. 207 208 CIVIL PRACTICE ACT LECTURES. The difficulty with this system, which had been in vogue in this state for so many years, was that no matter what the nature of the controversy might be, with certain very slight exceptions which I will men- tion later, the parties had no means of ascertaining what their rights or relations might be, until such time as direct and perhaps irreparable damage had been done. Thus in the case of a controversy between two parties as "to the meaning of a certain clause in a con- tract entered into between them, one could not come to court to ascertain what his rights might be until the contract had been broken, and an affirmative claim for damages existed. This was most unfortunate as the parties would no doubt have each preferred to have his rights under the contract fixed and deter- mined before the fatal step, which constituted the alleged breach, was taken. Or, to take another typical example, a statute is passed regulating the conduct of persons in certain lines of business and prescribing substantial penalties involving perhaps direct im- prisonment for failure to obey the regulatory provi- sions of the statute. No matter how much a person engaged in a particular line of business might wish to test out the constitutionality of the statute, and thus ascertain beyond question whether he was required to obey the law or not, the system of coercive judg- ments required that he first break the law and in that way furnish an actual case to be presented to the courts for decision. I remember some years ago that a question arose concerning one of the sections of the Penal Law of this state and it was contended that the section should be construed in a certain way, which would have made a great difference in the method of transacting a cer- DECLARATORY JUDGMENTS. 209 tain line of business. In order to have the matter placed before the courts for adjudication, it was neces- sary to find some individual who was willing to take the risk; he did the act which the statute apparently pro- hibited, the district attorney who had been fully ad- vised about the matter, caused his immediate arrest and, as he was taken into custody, a writ of habeas corpus, which had been prepared in advance, was served and the matter thus only after considerable trouble and expense finally brought before the court for determination. It is the function of the declaratory judgment to .merely declare what the rights and relations of the parties litigant under certain facts and circumstances may be. It is like a proceeding for the construction of a will which may be cited as a typical illustration of what the declaratory judgment is and the function it should perform. It does not in any sense involve coercion, but merely, as the name indicates, declares what the rights or relations of the parties may be. The section of the Civil Practice Act on this point is entirely new and while in a certain sense indirectly based upon the English Practice Act, the language is quite dissimilar. Section 473 of the Civil Practice Act provides as follows: "The supreme court shall have power in any action or pro- ceeding 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 judg- ment. Such provisions shall be made by rules as may be necessary and proper to carry into effect the provisions of this section." This section is supplemented by five rules which are quite brief and which I shall read in full : "Rule 210. An action in the supreme court to obtain a declara- tory judgment, pursuant to section four hundred and seventy-three 14 210 CIVIL PRACTICE ACT LECTURES. of the civil practice act, in matters of procedure shall follow the forms and practice prescribed in the civil practice act and rules for other actions in that court. "Rule 211. The prayer for relief in the complaint shall specify the precise rights and other legal relations of which a declaration is requested and whether further or consequential relief is or could be claimed. If further relief be claimed in the action, the nature and extent of such relief shall be stated. ' ' Rule 212. If, in the opinion of the court, the parties should be left to relief by existing forms of actions, or for other reasons, it may decline to pronounce a declaratory judgment, stating the grounds on which its discretion is so exercised. "Rule 213. In order to settle questions of fact necessary to be determined before judgment can be rendered, the court may direct their submission to a jury. Such verdict may be taken by the court before which the action is pending for trial or hearing. The pro- visions of sections four hundred and twenty-nine and four hundred and thirty of the civil practice act apply to a verdict so rendered. "Rule 214. Costs in such an action shall be discretionary and may be granted to or against any party to the action." Before going into the substance of the matter more fully, it is well to pause at this point and observe that the procedure in connection with declaratory judg- ments follows the forms and practice as to other ac- tions pending in the Supreme Court. This, I take it, means that an action in which a declaratory judgment is requested, will be begun by the service of an ordi- nary summons and complaint with the only difference that the prayer for judgment at the end of the com- plaint will be for a declaratory rather than a coercive judgment as in the past. The issue will be raised by the service of an answer and the case noticed for trial like any other ordinary action. As intimated in Eule 213, the case will be put either upon the Trial Term calen- dar or the equity calendar, depending upon whether the issues raised require the finding of a jury. It is well to remember that the declaratory judgment in no sense resembles the submission of a controversy on an agreed statement of facts, which has been pos- DECLARATORY JUDGMENTS. 211 sible in New York and most other states for a great many years. The provisions of Sections 1279-81 of the Code of Civil Procedure, which found their source in the Code of Procedure, are now repeated almost ver- batim as Sections 546-8 of the Civil Practice Act; and these provisions have been limited in their application to those cases, and those cases only, where the person named as plaintiff in the submission could bring an action at law or in equity against the person named therein as defendant (Hanrahan v. Terminal Station Commission, 206 N. Y. 494). No doubt many of you would like a reference to some general literature on this subject so that you can go into it much more fully than is possible at this time and for that reason I shall very briefly refer to the leading articles on the subject. The best discussion I have been able to find is in a very searching article by Prof. Sunderland, entitled, "A Modern Evolution in Eemedial Eights — the Declaratory Judgment," which appeared in 1917 in 16 Mich. Law Review 69, and a further series of articles by Prof. Borchard en- titled "The Declaratory Judgment — a Needed Pro- cedural Reform," which appeared in 1918 in 28 Yale Law Journal 1, 105, where the various authorities on the subject are exhaustively collected, reviewed and discussed. There is a short article which I wrote on the subject entitled "Some Phases of the New York Civil Practice Act and Rules," which appeared in the Feb- ruary, 1921, issue of the Columbia Law Review (21 Col. Law Review 113). My own article is in no sense a real contribution to the literature on this subject, but may be helpful to you merely because there are collected in the foot notes references to a good many articles and cases on the subject and particularly to 212 CIVIL PRACTICE ACT LECTURES. the various states of the Union where similar statutes have been passed, such as Connecticut, Florida, New- Jersey, Rhode Island and Michigan. At this point, and before discussing special phases of the subject further, I think I should discuss the question of the constitutionality of Section 473, as a recent decision in Michigan (Anway v. Grand Rapids By., 179 N. W. 350), by the Supreme Court of that state, has held a similar statute to be unconstitutional and void on the ground that the giving of declaratory judgments was not in any sense the performance by the court of a judicial function, but merely consisted in the giving of legal advice. It is always easy to charge the court with the commission of judicial errors, but I do not recall any instance in my own experience where the decision of the highest court of any of our states appeared so clearly and palpably erroneous as the decision of the Supreme Court of Michigan in the Anway case. Had the court merely stated that in its opinion the particular case then pending before it was collusive and that it did not deem its function to be the handing out of legal advice, which is the function of the lawyers in Michigan as well as elsewhere, the matter would not have been so bad. The court went further, however, and felled the whole structure with a single blow on the theory that all declarator judg- ments lacking the essential characteristic of coercion merely amounted to giving advice, Avhich it was held was not in any sense a judicial function. This decision, if carried to its logical conclusion would, of course, deprive the courts of the power of construing wills or deeds, or in any sense, or under any circumstances rendering a decision or judgment which did not in DECLARATORY JUDGMENTS. 213 terms, direct the payment of money or the performance or non-performance of an act. As this decision of the Michigan Court has been universally condemned and subjected to very hitter criticism, I shall not take up any more time in express- ing my own views on the subject. I do not believe for a moment that the courts of this state are going to hold Section 473 of the Civil Practice Act unconsti- tutional in whole or in part. Indeed, it is a rather significant circumstance that in a somewhat recent case (Helme v. Buckelew, 229 N. Y. 363, 372), which was decided by the Court of Appeals of this state, before the Supreme Court of Michigan published its decision in the Anway case, Mr. Justice Cardozo took occasion to say by way of dictum: "Much may be said in favor of introducing the declaratory judgment into our law of procedure (Borchard, The Declaratory Judgment, 28 Yale L. J. 1, 105). I think, however, we may assume that the lawmakers, if they had intended to introduce such a reform by the enactment of section 1836a of the Code, would have revealed their purpose more distinctly. They would have used language similar to that of the new Practice Act, which establishes a new remedy for the future (Sec. 473, ch. 925, Laws of 1920, adopted May 21, 1920, to take effect April 15, 1921). They would not have begun by authorizing a declaratory judgment which would not settle anything by its declaration, since it would be of no force in the only jurisdiction where there is an estate to be administered. ' ' It must be borne in mind, however, that a salutary word of warning is in fact to be found in the Michigan decision as it is undoubtedly quite true that our courts, under the New York State Constitution, are only em- powered to perform judicial functions and it is in no sense a judicial function to give legal advice. Accord- ingly, one must be very careful in coming to court with a prayer for the entry of a declaratory judgment to have a real and not a purely simulated controversy to 214 CIVIL PRACTICE ACT LECTURES. present; otherwise, the courts would be literally- swamped with a tremendous amount of this litigation based upon the desire of particular litigants to be ad- vised in advance by the courts of what their rights and relations in a given state of facts might be. The problem is not a new one and I assume that the courts will find no insuperable difficulties in the ascertain- ment of those instances where real and genuine con- troversies exist and those other cases where the parties have merely chosen this means of attempting to get free advice from the courts. The Convention to Formulate Eules of Civil Prac- tice no doubt had this question very much in mind when they prepared Rule 212 which gives the court the power to, in its discretion, decline to pronounce a declaratory judgment where, in the opinion of the court, the parties should be left to relief by existing forms of action, "or for other reasons." In other words, the court may decline to entertain jurisdiction for any reason which the court may deem sufficient. Returning to the general subject, there is another point which is fundamental and which must be thor- oughly understood. A declaratory judgment differs from a coercive judgment merely in the one particular that it declares what the rights or relations of the par- ties may be but does not attempt to coerce anyone or to direct the parties to do or refrain from doing any- thing. It must not, however, be supposed that such a declaratory judgment is a mere form of words. Like any other judgment, it is absolutely final and binding upon all the parties to the case. Furthermore, when the rights or relations of the parties have been once established by a declaratory judgment, it is a natural and normal procedure to follow up such a declaratory DECLARATORY JUDGMENTS. 215 judgment when necessary with a further action in which a money judgment or an equitable decree is requested. To take a typical illustration, let us suppose that an actual controversy arises between certain parties to a contract as to the construction of a certain ambiguous clause thereof. All persons having any interest in the controversy are brought before the court and a declaratory judgment is made construing the clause o f the contract and declaring the rights of the parties in reference thereto. No appeal is taken from this judg- ment. One of the parties, however, who might be characterized as the defeated party in the declaratory judgment case, pays no attention to the declaratory judgment, refuses to be bound by the construction of the contract by the court and he proceeds to break the contract as thus construed. In such a case, as soon as substantial damages have accrued, the other party may bring an action in the regular form of an action at law for damages for breach of contract ; and when this ac- tion comes on for trial the only questions to be litigated relate to the conduct of the party who has broken the contract, and the amount of the damages. The con- struction of the contract and the rights of the parties with reference thereto have already been finally and conclusively determined in the declaratory judgment case. Nor is it to be supposed that the courts will proceed to render a declaratory judgment unless all the neces- sary parties are before the court. Section 193 of the Civil Practice Act, which states the general equity rule as to joinder of parties, is peculiarly applicable to declaratory judgment cases where the courts may be expected to be particularly careful lest a judgment be 216 CIVIL PRACTICE ACT LECTURES. rendered which shall necessarily affect the rights of some person not a party to the record. The Declaratory Judgment in England. As it is almost inevitable that our courts will turn to the English decisions with respect to the various questions which are bound to arise, I have thought it wise to discuss somewhat fully the development of the law in England with respect to declaratory judgments and to also discuss a considerable number of English decisions bearing on the points of most practical im- portance which will undoubtedly arise here within the next year or two. Agitation for the declaratory judgment was com- menced in England in 1828 by Lord Brougham, but the development of the law was rather slow and the de- claratory judgment did not fully develop until 1883. The first statute on the subject was the Chancery Procedure Act passed in 1852, Section 50 of which provided : "No suit * * * shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the Court to make binding declarations of right without granting consequential relief." Prior to 1852 the Court of Chancery would not make any declarations of right unless it also gave some con- sequential relief. There were a few decisions indi- cating some apparent exceptions, but these are almost negligible. Thus in Curtis v. Sheffield (1882), 51 L. J. Ch. 535, 21 Ch. D. 1, it was indicated that in 1836 Vice- Chancellor Shadwell made seven declarations of right as to seven legacies given by the will of a testator, in which he declared the right of the present parties to be entitled to interest, and also their rights in the future after the death of various life tenants, there being no consequential relief given in that case. DECLARATORY JUDGMENTS. 217 In spite of the express authorization contained in Section 50 of the Chancery Procedure Act, the English courts were still reluctant to render such declaratory judgments generally, and it was held, even after this provision, that no declaratory judgment would be rendered unless some consequential relief was or could be claimed. Of course, the High Court of Chancery would render such a declaratory judgment if the con- sequential relief was not claimed, hut the fact remained that the parties seeking a declaratory judgment must have had a right to some consequential relief if they chose to seek it (See Booke v. Lord Kensington, 1856, 2 K. & J. 753, where the court held that under the power granted to the Court of Chancery in 1852 by Section 50 of 15 and 16 Vict. c. 86, a declaratory decree could only be granted in cases in which there was some equitable relief which might be granted if the plaintiff chose to ask for it). This narrow view prevailed until 1883, when Order XXV, Eule 5, went into effect. In the meantime, in 1873 by virtue of Sections 16 and 23 of the Judicature Act of that year, the juris- diction of the High Court of Chancery was transferred to the High Court. This jurisdiction was to be exercised by the High Court in the manner provided by the Act and by such rules and orders of court as might be made pursuant to or under the Act. Section 17 of the Judicature Act of 1875 gave power to the Crown to make further rules for carrying the Acts of 1873 and 1875 into effect and this led to the famous Order XXV, Eule 5, of the Supreme Court Rules of 1883, which reads as follows: "No action or proceeding shall be open to objection, on the ground that a merely declaratory judgment is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed, or not." 218 CIVIL PRACTICE ACT LECTURES. This is the enactment pursuant to which declaratory judgments are rendered today in England. Before discussing the English cases in detail, it may be worth while to notice that there is considerable dif- ference in form between the English provision and the language of Section 473 of the Civil Practice Act which I have already read. While it might have been better to take over the language of the English law as it stood, I can find nothing in Section 473 of the Civil Practice Act to in any way indicate that such language should receive an interpretation in any degree more restricted and narrow than the interpretation of the English Order XXV, Eule 5, quoted above. Before taking up any of the interesting specific questions or phases of declaratory judgments as ap- plied by the Courts of England, I feel that it would be interesting and of material assistance to take note of what some of the English judges have said, indicat- ing how they have regarded this power of making declaratory judgments ; that is, whether they regarded it as a power to be liberally construed and applied or as one to be applied with considerable care and caution. In the case of Austen v. Collins (1886), 54 L. T. R. 903, it was held under Order XXV, r. 5, that the Court has now jurisdiction to make a declaratory order, though no consequential relief is claimed, but such jurisdiction will be exercised with care and caution. At page 905, Chitty, J., said : "The rule leaves it to the discretion of the Court to pronounce a declaratory judgment when necessary, and it is a power which must be exercised with great care and jealousy. ' ' The case of Faber v. Gosworth Urban District Coun- cil (1903), 88 L. T. B. 549, presents an interesting situation where the Court pointed out that the power DECLARATORY JUDGMENTS. 219 to make a declaratory judgment should be applied with care. The case was briefly this : The plaintiffs desired to develop a tract of land, almost two hundred acres in extent, by laying out a system of sewers, and building houses on the land. The proposed sewers ran from nine to eighteen inches in diameter, while those of the neighboring district, to which they wished to connect them, were only twelve inches in diameter. The neighboring district said the construction of such a series of sewers was in violation of a section of the Health Law, and that if the owner insisted on arbitra- tion, they would raise this objection at all times. The owners then brought action for a declaration of their right to connect to the sewers of the neighboring dis- trict and for an injunction. The case by agreement was considered as a motion for judgment, and the claim for an injunction was not argued. Eady, J., stated : "The plaintiffs now claim only a declaration, and it may well be that under the new practice a declaratory order might be made, having regard to Order XXV, r. 5. It has been pointed out that this jurisdiction ought to be exercised with extreme caution." He then went on to point out how unsatisfactory it would be for him to make a declaration that the plain- tiffs had a legal right to connect their sewers to those of the neighboring district, when he had no evidence before him as to what the result would be, and there- fore refused to make a declaration. In North Eastern Marine Engineering Co. v. Leeds Forge Co., (1906) 1 Ch. 324, Joyce, J., after calling attention to the obiter dictum in Williams v. North's Navigation Colleries, 1889, Ld., (1904) 2 K. B. 44, to the effect that the declaration claimed must be an- cillary to putting in suit some legal right, proceeded : 220 CIVIL PRACTICE ACT LECTURES. "Whether this be as plain and satisfactory a definition as could be wished I venture to doubt, but both sides agreed in saying that it was a matter for my discretion, a discretion which though it exists, according to the cases, must be exercised with extreme care and caution." In Dyson v. Attorney-General, (1911) 1 K. B. 410, "which was an action to have declared the invalidity of a form issued by public officials, at p. 417, Cozens- Hardy, M. R., said: "But I desire to guard myself against the supposition that I hold that the person who expects to be made defendant, and prefers to be plaintiff, could, as a matter of right, obtain his object by commencing an action to obtain a declaration that his opponent has no good cause of action against him. The Court may well say 'Wait until you are attacked and then raise your defense,' and may dismiss the action with costs." However, it is interesting to note that on appeal, where the judgment in this case was affirmed (1912) 1 Ch. 158, Moulton, L. J., said : "So far from thinking that this action is open to objection on that score, I think that an action thus framed is the most con- venient method of enabling the subject to test the justifiability of proceedings on the part of prominent officials purporting to act under statutory provisions. Such questions are growing more and more important, and I can think of no more suitable or ade- quate procedure for challenging the legality of such proceedings. It would be intolerable that millions of the public should have to choose between giving information to the Commissioners which they have no right to demand and incurring a severe penalty. There must be some way in which the validity of the threats of the Commissioners can be tested by those who are subjected to them before they render themselves liable to penalty, and I can conceive of no more convenient mode of doing so than by such an action as this. ' ' In the case of Burghes v. Attorney-General, (1911) 2 Ch. 139, p. 156, Warrington, J., after holding that the Crown was a proper defendant in an action for a declaratory judgment, proceeded to say: DECLARATORY JUDGMENTS. 221 "But the jurisdiction is discretionary and should be exercised with great care and after due regard to all the circumstances of the case." In the case of Clay v. Booth (C. A.), (1919) 1 Ch. 66, there is a typical expression by Duke, L. J., of the fear so often felt by the Courts that they are going to be unduly burdened by the volume of litigation whenever any new sort of procedure is developed or when an old practice is given a broader application. He says : "I do not myself believe that, in the ordinary case of possible controversy between parties, it is open to one of the parties, be- cause he apprehends a claim will be made against him, to serve a writ or other process upon the other party in order to obtain a decision that that claim could not be made. It seems to me to go far beyond anything which has existed in the past history of litigation in this country, and to open up a vista * * * a great danger * * * of needless and costly controversy fomented by parties who delight in litigation. * * * I am only referring to the grave prospect there is if any citizen who possibly supposes he may have litigation at some future time against him is to be en- titled to safeguard himself and set his affairs right by making his supposititious antagonist the defendant to an action that might tend to keep possible litigants in a very cautious frame of mind; but I do not think it is within the right of the subject to start legal proceedings in such a state of things." The courts seem to have taken a very constructive and liberal attitude with reference to the application of declaratory judgments to the amicable settlement of commercial disputes. With reference to these cases, they have expressed themselves as in favor of the extension and liberal application of the declaratory judgment on the ground that it is a material aid to business and commerce. For instance, in the case of Guaranty Trust Co. v. Hannay & Co., (1915) 2 K. B. 536, Pickford, L. J., said : "If such a meaning can be given to the rule I think it should be given. To narrow it as asked by the defendants would be to 222 CIVIL PRACTICE ACT LECTURES. put an end to what has been a most valuable procedure, especially in commercial matters. I may instance one case, Societe Maritime et Commerciale v. Venus Steam Shipping Co. (9 Com. Cas. 289), in which questions involving most important matters on which immediate action was required were decided, which, apart from this rule, could only have been decided after great delay, incon- venience, and expense." Also in Guaranty Trust Co. v. Hannay S Co., supra, at p. 572, Bankes, L. J., said: " * * * and having regard to general business convenience and the importance of adapting the machinery of the Courts to the needs of suitors I think the rule should receive as liberal a con- struction as possible." A good illustration of the efficacy of the declaratory judgment in commercial disputes is the case of Societe Maritime et Commerciale v. Venus Steam Shipping Co. (1904), 9 Com. Cas. 289, referred to hy Pickford, L. J., supra. This was an action in which plaintiffs claimed a declaration that they were not bound to load the steamship Beppe. The plaintiffs, a society of workers, made a contract with one Locke to load ore on- to ships furnished hy Locke, not less than seventy-five thousand tons per year for five years. When the contract had about one year and a half to run, the de- fendants as assignees of Locke claimed that they were entitled to the benefits of the contract, and tendered the Beppe to be loaded according to the contract. The contract was assignable, but there had been no proper assignment to the defendants from Locke. The plain- tiffs sought a declaration, as above noted. In the course of his judgment granting them a declaration that they were not obligated to perform under the contract and render services to the defendants until a proper assign- ment was made to them from Locke, Channell, J. T stated : DECLAKATORY JUDGMENTS. 223 "I think that in reference to a mercantile transaction of this sort parties are entitled now to come to the Court and say, 'It is important to us in reference to this contract, which has a year and a half to run, to know whether we are bound by it or not.' I think they are entitled to come, showing a reason for asking that, to ask for a declaration. They are not entitled to come and ask a Court of law for an opinion upon a speculative or academic ques- tion; but showing the necessity of a decision upon it, I think they are entitled to a declaration as to whether or not the contract is binding upon them. They are not bound at their peril to refuse to perform it and then to be liable to heavy damages for not per- forming it for the space of the next year and a half. If they are wrong, they would be liable for damages down to the time of the judgment of the Court while they are refusing to perform; but upon the Court saying that they were bound, they would then say : ' We will now go on with it for the remainder of the time. ' I think that is a sufficient reason. I think, therefore, that they are en- titled to some form of declaration that they are not bound to the defendants in the present state of things." It can be easily seen what a great advantage it is in such a ease for a party who believes that he is justified in refusing to perform to be able to go to the Court and ask for a declaration to that effect, rather than being obliged to go upon his own assumption, or that of his counsel, and refuse to perform and take the chance of incurring heavy damages by so doing if it develops that he was obligated to perform. Now let us discuss some of the specific points which have led to discussion in the English decisions and to the formulation of certain judicial rules established by adjudications which the courts here in New York will very probably follow. No Declaration Where Special Tribunal Can Handle Situation. "Where a special tribunal or a special procedure has been appointed or set up for the handling of a par- ticular situation, the courts are not disposed to make a declaration, but rather to leave the parties to seek 224 CIVIL PRACTICE ACT LECTURES. the solution of the situation by an action before the tribunal constituted to handle it, or by means- of the procedure set up to take care of such a situation. In this connection, I may point to the case of Burghes v. Attorney-General, (1911) 2 Ch. 139, affd. (1912) 1 Ch. 173, where it was said : ' ' There is one point remaining to be noticed. In Grand Junction Waterworks Co. v. Hampton Urban Council (1898, 2 Ch. 331), it was held that where the Legislature has appointed a special tribunal for the decision of a question, this Court ought not, except in very special cases, to interfere by injunction or declaration of right, and thus withdraw the case from that tribunal." In the case of Barraclough v. Brown, (1897) A. C. 615, power to decide the dispute as to the particular subject-matter had been taken away by the statute from the High Court as a Court of first instance, and given to another tribunal. So there was a want of jurisdiction to consider the subject-matter under any circumstances. In the case of Bull v. Attorney-General for New South Wales, (1916) A. C. 564, a declaration was re- fused in an action to have an extension of the term of an improvement lease, granted under the Crown Lands Act, 1895, of New South Wales, declared void. It was held that Section 44 of that Act applied to the exten- sion, and that it was not void, but voidable. However, the Court declared that the information for a declara- tion that it was void could not be maintained, and that it could only be declared void by the procedure pro- vided by Section 44 of the above Act. Value as an Alternative Remedy. The declaratory judgment is of great value to liti- gants as an alternative remedy, where the main relief DECLARATORY JUDGMENTS. 225 asked for cannot be given for some reason. Because of this, in actions for injunctions and other relief, there is usually contained a request for a declaration if the injunction or other relief cannot be given. A good illustration of the use of the declaration as an alternative remedy is the case of Vestry of the Parish of St. Mary, Islington v. Hornsey Urban District Council, (C. A.) (1900) 1 Ch. 695. In this case, the defendants had made an arrangement with the plain- tiffs for the discharge of some sewage from the de- fendants' sewers into the sewers of the plaintiffs' dis- trict, and the volume of the sewage discharged into the plaintiffs ' sewers had become so great as to choke them up. Plaintiffs sought an injunction, restraining the defendants from any further discharge of sewage into their, the plaintiffs', sewers. The Court refused the injunction on the ground of the great difficulty in which the defendants would find themselves if their sewers were put out of use, but made a declaration that the defendants were not entitled to send sewage from their district into the plaintiffs' sewers without the consent of the plaintiffs, and the plaintiffs were at liberty to apply to the judge to whose court this ac- tion was attached, at the end of twelve months, to enforce their rights as above declared. It can be readily seen that if the plaintiffs did not have the alternative remedy of a declaration that, when their injunction was refused, they would have gained nothing at all definite by the proceeding. As it was, the judge refused their request for an injunction on the ground of the serious difficulty in which the de- fendants would find themselves if their sewers were closed, but it is to be noted that he made the declara- tion as an alternative remedy that the defendants had 15 226 CIVIL PRACTICE ACT LECTURES. no right to send sewage into the district of the plain- tiffs without their consent, and that the plaintiffs could apply to the Court after a period of twelve months to enforce their rights. This was, of course, to give the defendants a chance to make different arrangements. The defendants were, therefore, apprised of the legal rights of the plaintiffs, and would be able to remedy the situation before the expiration of the twelve months. If they did not do so, then, upon the appli- cation of the plaintiffs, the Court would give the coer- cive relief demanded. It is quite apparent that this disposition of the matter was so much more equitable to all concerned, and so much more liable to work out a convenient and effective solution of the difficulty, than if the Court had been compelled to just either grant or refuse the injunction. It seems that a declaratory judgment will not be rendered unless it is asked for. However, in Evans v. Manchester, Sheffield & Lincolnshire R. R. Co. (1887), 36 Ch. D. 626, an exception was made, and the declaration was given, although the action was only for an injunction and damages. The facts in that case were very simple. A mill was constructed upon the banks of a canal, and the working of a coal mine caused both to subside, resulting in the overflowing of the water from the canal into the mill. The Court could not give an injunction because the action was not brought as provided by statute, but they declared that the water from the defendants' canal had overflowed into the plaintiff's mill and that the defendants were liable for the injury caused thereby. Thus a declara- tion was made, even though it was not asked for. DECLARATORY JUDGMENTS. 227 The Negative Declaration. Upon making a study of the English cases regarding declaratory judgments, it is quite apparent that one of the main things which has caused serious doubt and question is whether or not the power to make a declara- tory judgment under Order XXV, r. 5, extended to cases where the party who sought the declaratory judgment had no cause of action, in other words, where plaintiffs sought to have rendered a declaration of their freedom from obligation to the defendants on contract or otherwise, or where they sought a merely negative declaration of jural relations. Until 1915, this question was not definitely decided, and there were decisions to the effect that a cause of action was neces- sary, or at least, that the plaintiffs had to have some right or claim against the defendants which they could enforce even though they were not attempting to do so, as well as decisions holding that this was not neces- sary. In 1915, in the very important case of Guaranty Trust Co. v. Hannay S Co. (C. A. [1915], 2 K. B. 536), two out of three Justices held that a cause of action was not a condition precedent, and this seems to have definitely settled this question, because the deci- sions which have been rendered since 1915 would seem to indicate that the Judiciary have accepted this case as the controlling authority upon this point. As this question of whether or not a negative declaration could be made by the courts has caused so much difficulty and has been given so much thought and consideration by various English courts, it may be interesting to refer to some of the outstanding cases on this subject. In the case of Austen v. Collins (1886), 54 L. T. K. 903, it was held under Order XXV, r. 5, that the Court had jurisdiction to make a declaratory order, though 228 CIVIL PRACTICE ACT LECTURES. no consequential relief was claimed, but such juris- diction would be exercised with great caution. In Brooking v. Maudsley Son & Field (1888), 38 Ch. D. 636, Stirling, J., said at page 644 : "The present Plaintiff comes before the Court without alleging any case which would give a Court of Equity jurisdiction, either exclusive or concurrent with the Courts of Law. The sole ground on which he claims the relief is that, although there is a good legal defense to any claim by the Defendants against him, that defense depends on extrinsic facts, the evidence of which may not be forthcoming at all times and. under all circumstances. ' ' The Court said that the proper proceeding under the circumstances would be an action to perpetuate testi- mony, and refused to give the declaration requested. This case has been much cited by those who held that the plaintiff must have a cause of action. It is true that the plaintiff had no cause of action in this case, and that they were merely asking for a declaration that they had a good defense to any claim which might be set up by the defendants against them. However, it seems that the ground upon which the declaration was refused was that the relief requested should be obtained by an action to perpetuate testimony and not by an action for a declaration ; in other words, that the court in this action for the declaration had no jurisdiction in the matter. One of the leading cases on negative declarations is London Association of Shipowners v. London and India Docks Committee (1892, 3 Ch. 242). This was an action by London Association of Shipoicners and Brokers, Ltd., and the Peninsular and Oriental Steam Navigation Co., a member of the plaintiff association and a customer of the docks in question, for a declara- tion that certain regulations issued by the defendants were invalid until confirmed in the manner prescribed DECLABATORY JUDGMENTS. 229 by statute, and for an injunction enjoining them from enforcing such regulations. The Association was held to have no maintainable action, and the Peninsular and Oriental Steam Navigation Co. who were customers of the docks used only appropriated berths, but as was pointed out in the case, it was reasonable to suppose that they might sometime want one or more unappro- priated berths. They claimed that they had a right to the unappropriated berths unfettered by the restric- tions contained in the regulations which were passed. The Court of Appeal rendered a declaratory judgment that the regulations in respect to the unappropriated berths were invalid as to the Navigation Company. This was one of the cases relied upon by Pickford, L. J. and Bankes, L. J., in their judgments in the case of Guaranty Trust Co. v. Hannay