legislature should create the rules. The experiment by the Supreme Court of the United States on both sides of the practice of the federal courts has been a great success. The work of the American Judicature Society, which is forthcoming, will be a most material aid. The American Bar Association conference of bar associations, convened by it, and the efforts of its Committee on Unification of State Laws, will all contribute to simplify the task of drafting and promulgating rules. By courtesy of the Illinois Law Review and the Northwestern University Press, owners of the copyright, we append, as Exhibit B, a bibliography of this subject in its many aspects prepared by that wheel horse of progress, Roscoe Pound. We submit the foregoing suggestions for the consideration of the general public as well as of our brethren of the bar, believing that, if public sentiment in favor of such reform and simplification develops, the enlightened opinion of the associations of the bar of the country, of the states and of the counties of the states, will combine to exert such pressure upon the legislatures that they will be willing to propound amended judiciary articles to the electorate and. themselves enact such legislation as will carry the reform into operation. The maxims "bis dat qui cito dat," and "If 'twere well 'twere done 'twere well 'twere done quickly," do not necessarily apply. Rather, we would say, "If 'twere well 'twere done, 'twere well 'twere well done." EXHIBIT A37 CIVIL PRACTICE ACT AN ACT FOR THE SIMPLIFICATION OF THE CIVIL PRACTICE IN THE COURTS OF THE STATE OF NEW YORK The people of the state of New York, represented in Senate and Assembly, do enact as follows: 1. This act shall be known as the "Civil Practice Act," and except as otherwise expressly provided, shall apply to and govern the civil practice in all of the courts of the state. 2. The courts, within their jurisdiction, shall have all the powers, though not expressly conferred by statute or rules, necessary to the determination or enforcement of the rights of the parties. 3. There shall be but one form of civil "action" under this act in all of the courts subject to this act, which shall be so called, "See Part Two of Report, supra. whether heretofore denominated an action or special proceeding, except that the "writ of habeas corpus" is hereby preserved as a special proceeding. 4. In order to give effect to the provisions of this act and otherwise simplify procedure a convention composed of one justice of the appellate division of the Supreme Court in each department designated by such appellate division and one justice designated by the trial justices of such court in each department and one member of the bar of not less than fifteen years' standing designated by such trial justices, shall, subject to the reserved power of the legislature, have plenary power from time to time to make, alter and amend rules of practice and procedure, not inconsistent with law, binding upon all courts of the state and the judges and justices thereof (except the Court of Appeals, unless otherwise expressly stated, and the court for the trial of impeachments), which shall be called the "Civil Practice Rules.". Courts of record may also make such rules as may be necessary to carry into effect the powers and jurisdiction possessed by them, not inconsistent with the foregoing rules. 5. Until the Civil Practice Rules shall be made as herein provided, the rules hereto annexed shall be the rules of the courts governed by this act subject to such changes and additions as the legislature or the courts may make from time to time. 6. The procedure in the courts governed by this act shall be according to the provisions hereof and the Civil Practice Rules to be made from time to time, as herein provided, and in cases where no provision is made by statute or rules, power to make such rules as may be necessary for the conduct of appeals in the Court of Appeals, shall be vested in the judges of the Court of Appeals, and the power to make such rules as may be necessary in the conduct of trials and appeals in the several departments, shall be vested in the appellate division in the several departments. 7. The court, in its discretion and in the interest of substantial justice, may suspend, in whole or in part, the operation of any general rule of practice, but such action may be reviewed by the appellate division upon appeal. 8. At any stage of any action, special proceeding or appeal, a mistake, irregularity or defect may, in the discretion of the court, be corrected or disregarded, providing that a substantial right of any party shall not be thereby affected. No action or proceeding shall fail or be dismissed on the ground that a party therein has mistaken the court, venue, remedy, procedure or because of a misjoinder, non-joinder or defect of parties, if jurisdiction exists to grant the proper remedy; but in such case, upon terms, the matter shall be transferred to the proper court or place of trial, and the pleadings and other proceedings shall be so amended and new pleadings or other proceedings so issued or taken, that the whole matter in controversy between the parties may be completely and finally determined. 10. Any pleading in any action before or at the trial may, upon suitable terms, for the protection of the opposite party, be amended by the statement therein of new or different cause or causes of action, defense or defenses, counterclaim or counterclaims, or in any other respect. 11. Actions may be consolidated or severed whenever it can be done without prejudice to a substantial right. 12. The courts shall always be open for the transaction of business; a term of court shall continue until a succeeding term is commenced, although the court is not actually in session. A stated term of court is the period designated for the term and during which the court is actually sitting. Trial terms shall be designated as jury terms and court terms. Terms for the hearing of motions shall be known as "motion terms." An order whether issued by a court or a judge thereof shall be the same in form and effect. 13. Any causes of action may be set up in the same complaint and any counterclaim or defenses may be set up in the same answer. The court in its discretion may order one or more issues to be separately tried prior to the trial of any other issues in the case. No action or defense shall fail in whole or in part because a party has an adequate remedy in law therefor, but the court may grant such relief in law or equity with or without a jury as the case may require. 14. Every action shall be prosecuted in the name of the real party in interest, but the executor, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute, may sue in his own name without joining with him the party in whose interest the action is brought. 15. Every action shall be commenced by the service of a summons requiring the appearance of the defendant within ten days thereafter, the mode of service to be prescribed by rules. 16. Where a complete determination of the action cannot be had without the presence of other parties than those named, they shall be brought in; where a person not a party has a title or an interest or a right of any character which the judgment will affect, he may and upon his application must be made a party. 17. The complaint shall concisely state the facts constituting each cause of action. The answer must contain specific admissions or specific denials with respect to the allegations of the complaint or a concise statement of the facts relied upon for a defense. Whenever the answer alleges new matter constituting an affirmative defense or sets up a counterclaim the plaintiff must in like manner make a reply. Any material allegation in the complaint or answer not specifically controverted in the answer or reply shall be deemed admitted. 18. Objections to a pleading in point of law shall be taken either by motion or in the answer or reply. 19. Disposition shall be had by general motion to be made within twenty days after the action is at issue of all matters of procedure and of preliminary and anticipatory relief, including motions for judgment on the pleadings. The mode thereof shall be prescribed by rules. All further relief, other than trial or appeal, shall be granted only in the discretion of the court and upon suitable terms. 20. A party at any place within or without the state before an officer authorized to administer oaths and at any time prior to the trial of an action may examine a party without being bound by the testimony thus elicited provided the examination is had upon reasonable notice to the other parties to the action. The court may in its discretion on good cause shown provide by order that on the examination of a party the material books and records of such party may also be examined. 21. A party, at any place without the state, before an officer authorized to administer oaths, may upon such terms as may be fixed by the court, take the testimony of any person provided all other parties to the action shall have had reasonable notice and shall be afforded an opportunity to cross-examine orally. The court may in its discretion on good cause shown, provide by order that on such examination any material books or records may also be examined. Either party may waive oral examination or cross-examination and submit interrogatories to a witness upon which the examination is to be taken. 22. A party may take the testimony of any witness within the state before an officer authorized to administer oaths at any stage of the action upon reasonable notice to all of the other parties to the action, provided full opportunity be afforded for cross-examination, upon the certificate of the attorney of record that the testimony of the witness is material and necessary, the testimony, however, only to be read in case that, with reasonable diligence, the attendance of the witness at the trial cannot be compelled by subpoena. 23. In case an examination or cross-examination under the three preceding sections is conducted in a vexatious or unreasonable manner, any person or party may apply to the court in which the action is pending for an order prescribing the manner in which such examination shall proceed and the court, upon such application, may impose such costs as a penalty as the court may deem just. 24. In any cause or matter the plaintiff or defendant by leave of the court or a judge may deliver interrogatories in writing for the examination of the opposite parties, or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof, stating which of such interrogatories each of such persons is required to answer: Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose: Provided also that interrogatories which do not relate to any matters in question in the cause or matter shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness. 25. Any party may, without filing any affidavit, apply to the court or a judge for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the court or judge may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or make such order, either generally or limited to certain classes of documents, as may, in their or his discretion be thought fit. Provided that discovery shall not be ordered when and so far as the court or judge shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs. 26. It shall be lawful for the court or a judge, at any time during the pendency of any cause or matter, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such cause or matter as the court or judge shall think right; and the court may deal with such documents, when produced, in such manner as shall appear just. 27. Every party to a cause or matter 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 afterwards be at liberty to put any such document in evidence on his behalf in such cause or matter, unless he shall satisfy the court or a judge that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the court or judge shall deem sufficient for not complying with such notice: in which case the court or judge may allow the same to be put in evidence on such terms as to costs and otherwise as the court or judge shall think fit. 28. Where inspection of any business books is applied for, the court or a judge may, if they or he shall think fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations, or alterations. Provided that notwithstanding that such copy has been supplied, the |