were made by the City Court and others by the Surrogates' Courts. Special rules existed for the county courts and special rules for the municipal courts; with the result that it was not infrequently the case that a member of the bar of New York, admitted to practice in all its courts, would upon being confronted with a case in a court of special or limited jurisdiction, be under the necessity of retaining as counsel, to guide him, one whose practice was more or less exclusively within that court.

The substantive law of the state, starting with the interesting fact that it was the common law except as modified by statute, had developed into a series of volumes of what were called "Consolidated Laws," nearly a dozen in number, and of over 10,000 pages, including amendments and supplements, and two volumes of unconsolidated laws, being a statutory list or record of special, private or local statutes of the state from 1778 to 1911 of about 3,200 pages; mere tabulations of these laws by chapter and year, with a brief statement of the subject and disposition thereof. That this was an intolerable condition everyone had come to realize and a Board of Statutory Consolidation had been created by chapter 713 of the laws of 1913, charged with the duty of simplifying the civil practice in the courts of the state. This board, making a report to the legislature in 1915, summarized the situation as follows:

When the state constitution was adopted, the people of the state accepted as a part of the law of the new commonwealth the common law procedure of England as the same had been modified by the legislature of the colony of New York, subject to such alterations and additions as the legislature of the new state might from time to time enact with reference thereto."

The dissatisfaction with the condition of the procedure in the courts as well as with the general substantive law was voiced in the provision of the constitution of 1846 which directed the legislature to appoint commissioners to reduce into a written and systematic code so much of the whole body of the law of the state as seemed practicable and expedient to them."

Pursuant to this provision of the constitution the Code of Procedure was adopted in 1848 which made substantial changes in the common law practice and regulated the bulk of the procedure by statutory rules.

The Field code, by which name the Code of Procedure of 1848 was commonly called, sought to regulate only the general features of the practice by statute leaving the courts to control the details by means of rules.

This system together with other statutes bearing upon the subject continued

• Constitution 1777, Art. 35.

• Constitution 1846, Art. 1, § 17.

to govern the procedure in the courts until the adoption of the first part of the Code of Civil Procedure in 1877 which with the supplemental chapters added in 1880 has regulated the practice in this state down to the present time.

The Throop code, by which name the Code of Civil Procedure has been known, was based upon the idea of bringing together within the covers of a single book all matters relating to procedure whether substantive or otherwise and regulating all of the details of practice by statutory enactments.

The criticisms that were made against the Code of Civil Procedure at the time of its adoption have been fully justified by experience; and ever since its enactment, speeches, addresses and reports have been hurled against it.

The agitation on the subject resulted in the passage of an act in 1895 providing for the appointment of commissioners to report "in what respects the civil procedure in the courts of this state can be revised, condensed and simplified.”

The final report in pursuance of this statute was submitted to the legislature five years later but opposition arose to the plan followed by the commissioners and the report failed of adoption.

In 1899 a report of the Committee on Law Reform of the State Bar Association was made, in which the committee recommended "a simple practice act containing the more important provisions of the present code rearranged and revised, supplemented by rules of court."

A joint committee of the legislature in 1900 recommended a general plan, one of the features of which was "to reduce the general practice provisions to a single brief legislative practice act."

In 1903 a committee called the Committee of Fifteen made a report to the legislature pursuant to chapter 594 of the laws of 1902 in which it made various recommendations which would give as the report states: "A statute covering practice only, supplemented by such rules as may be deemed necessary to carry out fully its provisions."

In 1903 the Committee on the Law's Delay made its report with reference to the condition of procedure in the first department and made certain recommendations which however were not adopted.8

BOARD OF STATUTORY CONSOLIDATION

At this time the Board of Statutory Consolidation was created by chapter 664 of the laws of 1904 by which it was authorized not only to consolidate the general statutes of the state but to revise the practice in the courts.

The board found the task of simplifying the practice too great a one in conjunction with the work of consolidating the statutes and therefore directed its attention to the latter.

In 1909 the board presented a consolidation of the general substantive statutes of the state which were adopted that year and later it prepared a statutory record of these statutes and also a statutory record of the special, private and local statutes.

The simplification of the practice, however, had not been overlooked by the 7 L. 1895, ch. 1036.

8 L. 1902, ch. 485, amended by L. 1903, ch. 634.

board and in 1906 there was prepared a reclassification of the provisions of the Code of Civil Procedure under a logical analysis following the steps in the progress of an action.

In 1912 by chapter 393 the legislature directed the board to examine and report a plan for the classification, consolidation and simplification of the civil practice in the courts of this state and in the following year this report was presented to the legislature.

In 1913 the board was directed to prepare and present to the legislature "a practice act, rules of court and short forms" as recommended by the board in its report to the legislature of 1913.

In accordance with that statute we report to the legislature of 1915 statutes and rules designed to carry out the directions of the legislature and to simplify the practice in the courts of the state.

VII GENERAL PRINCIPLES OF REFORM

This report on simplification had been submitted to and discussed by the bar associations of the state of New York through able committees. It has been before the public at public hearings of the Joint Legislative Committee having this report under advisement for the legislature of the state. And it has been carefully examined by this committee with the primary result that a conviction has been formed in their minds that in the nature of things there are two theories of reform. One may be called the patchwork theory, and has high authority 'in support of it. It consists of emendations, "here a little, there a little, line upon line, line upon line, precept upon precept, precept upon precept," with the result that the modification or change that is sought is distributed over a period of time. The fact that drastic changes will result is concealed from a suspicious public, apprehensive that in some way their liberties or pockets will be unfavorably affected by any reform advocated by lawyers alone.

The other theory of reform is that urged by those who are conscious of the historic value of all developing institutions, but nevertheless have the courage, for it involves courage, to attack this particular problem of reform on the same theory on which the founders of this republic attacked the task of drafting a Constitution and of organizing the courts of the United States and, from time to time, of the several states of the Union. This method, postulates the ideal as its goal, the ideal in a constitutional Judiciary Article and the ideal in the distribution of powers of subsequent L. 1913, ch. 713.

regulation between the courts and the legislature. Confronted with both ridicule and abuse those who pursue this method must focus their attention undividedly upon the logical consistency of any plan which they put forward. To any limited group, such as this committee frankly concedes itself to be, both in its access to the general mind of the community and by reason of its own predispositions or prejudices, that which may seem logically consistent may nevertheless, when scrutinized by those of wider experience and learning, reveal defects not obvious to the framers. It is for the particular purpose of having such defects revealed that this report is given publicity and presented as an attempt to frame and formulate a concise and generic scheme of legal and judicial efficiency, adaptable to the evolution of the community and its needs and yet sufficiently rigid to preserve from impairment those things which are vital and necessary to the durability of the judicial system.

It will not surprise students of jurisprudence that certain questions emerge in this report which, so far as the state of New York is concerned, may be supposed to have been settled beyond the hope of change. Such, for example, is the reëmergence of the question of an appointive judiciary, with the interesting but vital modification that the appointing power should be, not in a legislature, nor in a governor, but in a chief justice of the state, who himself should be elected by the people, so that the three departments of the people's power, legislative, executive and judicial, should all have their roots in the popular will, should all be accountable to the people; but each should be so organized and in particular the judicial power, as to be independent of legislative and executive control, except in certain well-defined respects adequately indicated in the discussion below.

Another feature which emerges in this report, and which it is hoped will lead to immediate intelligent discussion, is that of a general court of plenary jurisdiction, having all the powers and attributes of all the existing courts in the state of New York, but divisible, by its own act, into as many parts or divisions as the exigencies of judicial business may from time to time require, such as an appellate division of last resort, intermediate appellate divisions, probate divisions, divorce divisions, commercial law divisions, tort divisions, criminal parts or divisions, and those in

turn divided into parts dealing with felonies, others dealing with misdemeanors and minor offenses, but all presided over by a judiciary, any member of which has the full plenary power of the court to determine and dispose of causes coming within the jurisdiction of the part over which he is presiding, so that no longer can one enter a court of justice asserting a right or complaining of a wrong and find himself, perhaps after months or years of delay, ejected and informed that he should have applied to some other division of the judicial system of the state and have pursued his remedy in another forum.

Opposition will surely develop to any suggested reform that is comprehensive and drastic, that involves a reforming of the old judicial machine, an elimination of long-familiar cogs that distributed power and wasted it, so that there may be direct transmission of power and as little intervening machinery as possible. Such reforms always arouse opposition. The abolition of a code cannot but lead many lawyers to suppose that, if there is to be repealed all that they know, they will have at an advanced age to learn practice de novo, and that their earning capacity will be diminished. In spite of the education and intelligence of the bar as a body, their objection to this particular reform is precisely similar in principle to that of the workmen in England to the introduction in mills and factories of labor-saving machinery, resulting in strikes and disorders, which only, however, in the end reacted upon those who were not able to see that certain things must come.

Also, as to the elimination of courts as separate institutions, having specific and limited powers, differentiating them from other courts, and at the same time preventing them from doing adequate and ample justice in cases which have by reason of special features warranted their assuming jurisdiction, these special courts have advocates and devotees who deprecate as a personal matter any consolidation of them in a court of general plenary jurisdiction. Moreover, the judges of higher courts with which these lesser courts would necessarily be homologated under such a reform cannot resist a feeling of opposition based upon the apparent equality which the judges of these inferior courts would at the outset have in respect of power and jurisdiction (we do not even suggest of salary), and are reluctant to share their dignity with those who were not primarily chosen with a view to their serving as justices of a court