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CODE OF PROCEDURE
STATE OF NEW YORK,
AS AMENDED TO 1871,
WITH NOTES ON
PRACTICE, PLEADINGS AND EVIDENCE;
RULES OF THE COURTS, FULLY ANNOTATED ;
A COMPLETE TABLE OF CASES, AND A FULL INDEX.
BY WILLIAM WAIT,
COUNSELLOR AT LAW.
68 STATE STREET.
APR 2 2 1940
Entered according to Act of Congress, in the year one thousand eight hundred and seventy-one, by
WILLIAM GOULD & SONS,
VAN BENTHUYSEN PRINTING HOUSE,
Albany, N. Y.
The adoption of the CODE OF PROCEDURE made a great innovation upon the common law rules of practice; and the change has been followed by a very great number of decisions giving construction to the constitution and the statutes, as well as establishing settled rules of practice. These adjudications are not only very numerous, but they have been reported in several different series of reports, until the accumulations have rendered indispensable the adoption of some convenient and reliable method of finding the authorities. One of the most feasible as well as the most usual modes heretofore practiced has been to give the sections of the Code, and under each section to arrange the decisions relating to it. In this respect the present work is based upon the general practice; but in the method of annotation, it will be seen to differ from other publications.
A careful collection of the authorities, made from an examination of each of the reported cases, has furnished a most extensive collection of materials, and the necessary result is a larger work than any other similar publication. A large page has been adopted, so that the least possible number of pages might be required. By omitting many of the earlier and obsolete decisions, the bulk of the work might have been diminished; but several considerations must be weighed before such a conclusion could be adopted. By giving all the decisions, the whole course of adjudication is readily followed; and by a careful and convenient arrangement, the present and the old rules are easily distinguished. Besides this, the adoption of the New York Code in several other States, either in whole or in part, renders our decisions valuable to the profession in such States; and this work will be a great convenience to them as a means of reference to the authorities giving construction to the various sections, whether original or amended.
The size of the page, the kind of type used, and the extent and variety of matter on a page, led to the adoption of double columns and numerous index or catch words, so that a long search will not be required to find any desired information contained on any of the pages in the volume.
The provisions of the new constitution have been given in full in the text; and, as these made material changes in the organization, jurisdiction and practice of the courts, it was necessary to enact statutes to give full effect to these constitutional provisions. These statutes have been given in full, as well as all other general statutes relating to the practice, although they may not form a part of the Code. In this respect, it was intended to make a full and accurate collection of such statutes as formed a part of the practice in this State. As every careful practitioner is particular to examine the very latest cases before venturing upon an important matter, he will here find the labor of collection already performed.
When deemed important, an analysis of the sections has been made, and the cases arranged in accordance with such analysis and the divisions under it.
Obsolete and overruled cases may easily be distinguished by a comparison of them with the later cases, while their original value is retained for the advantage of those who may desire them.
To avoid repetition, save space, and facilitate reference, it has been 1 und advantageous to state a clearly settled rule or principle, and then append to it such cases as sustain the point. Every point decided will be of importance to some one, and therefore a most careful statement of every point of practice has been given, so far as they may be found in any of the reports. As a part of the work, the new rules have been given, with all additions or amendments to the present time, together with elaborate explanatory notes, which, taken together, show how far the practice is modified or established by them.
In citing the cases, a reference is made to all the reports containing the same case, a mode of citation of the highest value to those who do not possess all the reports, as well as to those who have them all, and who may wish to compare the different reports so as to secure all the advantages which each series may possess over the others. The rule laid down by the highest court is always given as well as that in the courts below, and generally in connection with the cases affirmed or reversed, which enables one to examine the history of a case with little labor and delay.
The text of the Code, as here given, contains all the amendments made down to the time of publication in August, 1871.
A complete table of the cases cited will be found at the beginning of the volume. No other similar Code has furnished such a table, and no work is complete without it. As a means of reference to authorities, it is indispensable; for, if one case is known, a reference to that in the table of cases will be almost certain to furnish a reference to all other similar cases which may be found in connection with it in the notes. The index is very full and accurate, and, with the other facilities mentioned, will enable any one to find a given case or principle with the least possible labor or delay. That a vast amount of labor is required for the preparation of such a volume, is self-evident; and it has been done in the hope that it will render lighter the burdens imposed upon the practitioner in the discharge of his arduous and important duties in administering the law. With a clear conviction that no more impartial tribunal can be found than that which is composed of our profession, both on the bench and at the bar, and that they will appreciate every attempt to render them a service, while they will not expect impossibilities, this work is submitted to their judgment.
WILLIAM WAIT. August, 1871.