commissions and workmen's compensation boards and in other boards and agencies, their various powers of regulation-some powers quasi-judicial, some in aid of the executive, some purely administrative but all of them powers intended to be intrusted to efficient instrumentality and for the purpose of having the people's work efficiently done. It is on precisely the same theory that we contend that the judiciary with the assistance of the bar is more competent to devise and to administer, and to keep up to date, methods of judicial administration.

We plead, therefore, for a minimum of legislative regulation through a Short Practice Act. We plead for a minimum of specific sections in such an act. We urge that it will be unfortunate if into such an act is written more than the skeleton of practice, its mere essential bones-for the moment that the act deals with anything that might be described as the muscles or the arteries or the veins of the procedural body, then there will grow up litigation, urging that the legislature intended by the inclusion of a provision in this particular respect in the act to divest the court of the power of regulating it by its rules. Our recommendation in respect to this matter of a Short Practice Act generally, with particular reference to the state of New York, is that the legislature on the advice of the bar associations of the state which have already given more than customary attention to this very subject, should enact a Short Practice Act and that thereupon the New York associations of the bar should await the uniform Short Practice Act to be promulgated by the American Judicature Society and then should coöperate with the Committee of the American Bar Association on uniform state laws and in the conferences of that association with other bar associations should endeavor to secure throughout the United States the enactment of a Uniform Practice Act.

Theoretically, there is no reason or justification for a differentiation in practice between the state and federal courts, or between the courts of New York and the courts of New Jersey, or the courts of Massachusetts and the courts of California. The ingenuity of the bar and a general national spirit could even reconcile the difficulties inherent in adjusting the practice of Louisiana to that of Ohio. The bar of the country cannot render a greater service to the nation than by enlisting heartily and sympathetically in a movement for a uniform practice in all the courts of the land,

This will do more than any other single influence to create a nationalization of the people of the various states and without the loss of a single substantial right.

It may be that the citizens of various localities are entitled to certain rights and remedies as against aliens, but if local litigants are protected by adequate provisions for security for costs against long-distance opponents, there is no reason why American citizens dealing with one another in their business interests throughout the land should not find uniform and homogeneous tribunals of justice open to the adjustment of their disputes in every state of the Union. As it is (to take but one illustration), a man may have practiced before the Court of Appeals of the state of New York for forty years and may never have had occasion to go to the Supreme Court of the United States in a federal case. And he may be as ignorant as the merest law student of how to secure a writ of error and how to print and prepare his papers. It is this very differentiation which makes it important and necessary for the protection of litigants that although a lawyer may have been a member of the Pennsylvania bar for thirty years, he cannot now be admitted to the bar of the state of New York except upon conditions insuring his familiarity with the New York practice extending over a specified term of years. This is, of course, irrespective of the courtesy extended by local courts of hearing counsel admitted on a motion ad rem.

We offer two illustrations to show the unwisdom of having procedural matters controlled by legislative enactment:

ILLUSTRATION No. 1

In 1896, Section 803 of the New York Code of Civil Procedure read as follows:

Sec. 803. The court may direct discovery of books, etc. A court of record, other than a justices' court in a city, has power to compel a party to an action pending therein, to produce and discover, or to give to the other party, an inspection and copy, or permission to take a copy of a book, document, or other paper, in his possession or under his control, relating to the merits of the action, or of the defense therein.22

In 1896, and down to the present time, Section 804 of the Code of Civil Procedure read as follows:

222 R. S. 199, Section 21, consolidated with Co. Proc., section 388,

Sec. 804. Rules to prescribe the cases, etc. The general rules of practice must prescribe the cases in which a discovery or inspection may be so compelled, and the proceedings for that purpose, where the same are not prescribed in this act.23

In 1896, Subdivision 3 of Rule XIV of the General Rules of Practice was amended to read as follows:

3. Either party may be compelled to make a discovery of any book, document, record, article or property in his possession or under his control, or in the possession of his agent or attorney, upon its appearing to the satisfaction of the court that such book, document, record, article or property is material to the decision of the action or special proceeding, or some motion or application therein, or is competent evidence in the case, or an inspection thereof is necessary to enable a party to prepare for trial.24

As early as the year 1901, in the case of Auerbach v. Delaware L. & W. R. R. Co., 66 A. D. 201 (Fourth Department), it was held that in enlarging the scope of this rule so as to include property other than that specifically mentioned in Section 803 of the Code, the Convention of Judges, held in 1895, exceeded its authority, and the appellate division reversed an order granting plaintiff's motion for a discovery and inspection of parts of a locomotive boiler, through defects in which he claimed to have been injured.

The rule of the Auerbach case was followed in the case of Pina Maya-Sisal Co. v. Squire Mfg. Co., 55 Misc. 325 (Supreme Court, Erie County, 1907).

But it was not until the year 1909 (Chapter 173 of the Session Laws of that year) that Section 803 of the Code was amended so as to read: "book, document or other paper, or to make discovery of any article or property."

By Chapter 86 of the Laws of 1913, Section 803 was again amended so as to read: "Permission to take a copy or photograph of a book, document or other paper."

The legislators doubtless feared that the right conferred upon the Convention of Justices, to provide in the General Rules of Practice for the taking of a copy of a book, was not broad enough to authorize them to provide for the taking of a photograph! It took eight years to secure the legislative modification.

23 Id., Section 22, amendment. See rules 14-16.

24 Formerly rule 14, 1858; rule 18, 1871; rule 18, 1874; rule 14, 1877; rule 14, 1880; rule 14, 1884; rule 14, 1888; rule 14, 1896.

ILLUSTRATION No. 2

On June 1, 1906, the justices of the City Court of the City of New York, in convention assembled, passed a rule ordering the clerk to make up a new calendar of trial issues for October, 1906. The rule further provided that no action then regularly on the calendar should be placed upon the new calendar unless a new note of issue, for which no fee was to be charged, should be filed with the clerk between certain dates.

In the case of Willer v. Mink Restaurant Co., 60 Misc. 358 (City Court Special Term 1908), it was held that the City Court of the City of New York had no power to make such rule as it was in contravention of Section 977 of the Code of Civil Procedure, which then provided and still provides that:

served a notice of trial, and filed a note of issue, for a term at which the case is not tried, it is not necessary for him to serve a new notice of trial, or file a new note of issue, for a succeeding term; and the action must remain on the calendar until it is dispensed of.

The Mink case followed the rule of the appellate term laid down in the case of Rauchberger v. Interurban St. R. Co., 52 Misc. 518, in which the same rule was under consideration, and in which the same conclusion is reached.

Here we have the ridiculous situation of a court being unable to clear its calendar of dead wood, because its rule technically contravenes a section of the Code of Civil Procedure, which certainly had not been intended to achieve any such result.

To what extent will the relegation to the courts of this power of procedural regulation remedy these conditions? This brings us to Part Three of our report.

PART THREE-RULES OF COURT

We come now to the discussion of Rules of Court, with two general propositions assumed to be accepted:

(a) That a Judiciary Article has been written into the Constitution of the particular state, unifying the courts, and giving the unified court power to make its rules and discipline the members of the bench and bar, and that such court is constituted with an administrative body within its membership calculated to an effi

cient disposition of court business, and that procedural details will be eliminated from the court's consideration by the creation of Masters, and that elaborate codes of procedure have been abolished.

(b) We assume that in the transition stage of such reform a Practice Act is necessary, but that it must be concise instead of diffuse, and that it must be generic rather than specific.

This brings us to:

(c) That there should be a free hand given to the courts to regulate the conduct of causes on trial or on appeal, elastic, readily amendable, including rules of evidence (if the legislature does not act in specific instances), and upon the formulation and setting in operation of such rules, that it becomes a cardinal principle that technical violation of the rules may be in proper cases disregarded by the trial court, and, unless substantial rights are thereby affected, shall be disregarded on appeal.

Under this discussion of rules we collate for the information of the Club certain authoritative statements from the various discussions of this subject in recent years:

1

It is no longer necessary to rely solely upon a priori argument in support of the plan to commit control of procedure to rules of court. This mode of dealing with procedural problems now has behind it wide and long-continued experience, at home and abroad.

(1) It has been in force in England since 1875, and now obtains also in Ireland, Canada, Australia and India.

(2) It has been in force with respect to practice in equity in the federal courts since 1842.

(3) It has been in force in the admiralty jurisdiction of the federal courts since 1842.

(4) The Supreme Court of the United States has had and exercised the power to regulate the details of procedure in bankruptcy by rules since 1898. (5) The same court was given power to regulate practice in copyright causes by rules in the Copyright Act of 1909.

(6) The federal commerce court had and exercised the same power. (7) It has been in force in New Jersey since 1912.

(8) It is now in force in Colorado.

(9) It has been in force within fairly wide limits in the Municipal Court of Chicago for seven years.

(10) It is also in force, within certain limits, in the Municipal Court of Cleveland.

(11) It has been in force for some time in modern administrative tribunals,