the court or a judge thereof on filing security, or on such terms as justice may require, but the execution of an order granted by the appellate division can only be stayed by such division or a judge thereof. (Sections 2087, 2101, 2127, 2128, 2131.) [Section 1996, as to the allowance of the writ, is rendered unnecessary by abolishing the writ. Section 1997 to the effect that the final determination shall be styled a final order and that provisions of the Code relating to amendments, motions, etc., are applicable hereto, should be provided for by a section applicable to all special proceedings, and therefore omitted here. Sections 2000, 2001, 2002, 2003, 2004 and 2006 relate only to habeas corpus, and belong properly under the article treating of that subject. term, at a time fixed, why the direction of the writ should not be obeyed; it is used in a different sense where upon the hearing an issue of fact is raised by the defendant. In that case an alternative writ issues which is in the nature of a complaint or pleading to which answer must be made and upon which an issue is framed. It is proposed to abolish both kinds of alternative mandamus and to leave only existing in practice an order taking the place of what is now termed a peremptory mandamus and to allow this to be issued only upon notice as in the next section. It thus takes the place of the alternative writ in the first instance, and provision is made that the petition upon which the proceedings are instituted shall take the place of the alternative writ for the purpose of framing the issue, and that Section 2005 relates entirely to certiorari and is an answer shall be made to the petition. As the provided for under that title.] SECTION 9. How order enforced.-Orders of the court herein provided for may be enforced by proceedings for contempt. (Section 2090.) SECTION 10. Definition. The term "inferior tribunal," as used in this article, includes every court, board, corporation, officer, person, or aggregation of persons whose action may be affected by these proceedings. (Section 2146.) [Section 2124 is omitted, as any court of record has or should have, by other provisions of the Code, power to require an inferior tribunal to amend a record sent up to it, where justice requires that the defect should be supplied.] alternative writ is a mere order to show cause, it could issue without notice. Hence, in abolishing this writ and substituting therefor notice of motion or order to show cause, the provision that the writ may issue without notice necessarily becomes obsolete. Section 2071 is repealed for the reason given for abolishing the alternative writ, and for the further reason that provision is made for the service of papers in the preceding article.] SECTION 2. Demurrer.-The defendant may demur to the facts set forth in the moving papers and raise an issue of law to be determined by the court. Such demurrer may be taken in like cases and in the same form as a demurrer to a complaint, and ARTICLE II. ARTICLE IV, TITLE II, CHAP- the court shall determine whether the mandamus TER XVI. (Sections 2087-2090.) MANDAMUS. SEC. 1. Mandamus, when granted. 2. Demurrer. 3. Issue of fact, how disposed of. 4. Provisions of the order of mandamus. 5. When plaintiff shall recover damages. SECTION 1. Mandamus, when granted.-A mandamus may issue to an inferior tribunal to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station. It will not issue where there is an adequate remedy in ordinary course of procedure, nor will it control judicial discretion. (New, follows Field Code 1853, section 1273.) [Section 2067 is omitted, since there is no occasion for two kind of mandamus, and as provision is made for an order only upon notice, this section becomes obsolete. Very great confusion has arisen from the use of the term "alternative mandamus," which signifies in one connection, as in the section 2067, a writ in the nature of an order to show cause directing a party to perform an act or to show cause at a special shall be granted or denied. (Section 2076 in part. The remainder of 2076 relates to an alternative mandamus and the issue to be framed upon it.) SECTION 3. Issue of fact, how disposed of.-The defendant may raise an issue of fact by an answer to the petition upon which the proceeding is based, and by affidavits in addition thereto, which issue may be determined by the court as on a motion, or tried by a jury if the court so directs and the trial court shall thereupon grant, or refuse, the order of mandamus. In case of proceedings instituted in the appellate division of the Supreme Court, the issue framed may be sent to the trial court for hearing, and the trial court shall certify the result of the trial of the issue of fact to the appellate division for its action thereon. In all such cases the place of trial shall be that named in the title of the proceeding, unless otherwise order by the court. (Sections 2073, 2074, 2076, 2077, 2078, 2079, 2080, 2081, 2082, 2083, 2084 and 2085.) [The substitution of an answer for the return renders the sections referred to unnecessary. As a return is never made in actual practice, as the defendant either performs the act required or appeals, these provisions are superfluous.] SECTION 4, Provisions of the order of mandamus.— The order granting a mandamus shall prescribe the time and manner in which the act to be done shall be performed. (Sections 2072 and 2074.) SECTION 5. When plaintiff shall recover damages.— If, after trial of an issue, the court finds the plaintiff entitled to a mandamus, he shall, in an action brought for that purpose, recover the damages which he has sustained. (Sections 2083, 2088.) [Section 2086 is covered by the general provision as to costs; 2087 by the general provision as to appeals; 2089 by general provision as to stay of proceedings and powers of the court to enlarge time, and 2090 by the general provision that the order may be enforced by proceedings for contempt.] ARTICLE III. sequent proceedings other than of orders affecting its action need not be given to the tribunal prohibited unless otherwise directed by the court. (Section 2098.) SECTION 4. When issues triable by jury. The plaintiff may contradict, by affidavit, any allegation of new matter made in the return, and, where issues of fact arise upon the hearing, the court may determine them or direct the trial of any question of fact by a jury, in like manner and with like effect as where the order is made for the trial by a jury of issues of fact joined in an action triable by the court. Where such direction is given, proceedings must be | the same as upon the trial of issues so joined in an action, and thereupon the trial court must grant or refuse the order. Where the proceeding is pending ARTICLE V OF TITLE II, in the appellate division of the Supreme Court, such CHAPTER XVI. (Sections 2091-2102.) PROHIBITION. SEC. 1. Stay of proceedings may be granted. 3. Order, when granted and effect. [Section 2091 repealed, since there seems to be no occasion for two kinds of writ, for reasons given under Article I. An order staying proceedings, accompanying the application for an absolute writ, seems the simpler and more convenient. Sections 2092 and 2093 are embodied in the general provisions relative to this class of proceedings, and do not need to be repeated.] SECTION 1. Stay of proceedings may be granted.— The moving papers on application for an order of prohibition may be accompanied in a proper case by an order staying proceedings on the part of the tribunal whose action is sought to be affected, and also the party in the action or proceeding with respect to the particular matter or thing described therein, until the further direction of the court. (Section 2094.) trial may be ordered in the county where the papers are to be filed, and the proceedings thereon shall be certified to such appellate division by the court at which the trial is had. (Section 2099.) [Section 2100, provisions as to costs are contained in the general provisions as to this proceeding. Section 2101, general provisions for appeals in this class of proceedings provide for appeals in this case. Section 2102, provision for stay of proceedings is regulated by general provisions. See Article I.] ARTICLE IV. ARTICLE VII OF TITLE II, CERTIORARI, SEC. 1. When certiorari granted. 2. When certiorari will not be granted. 3. Limitation of time for review. 6. Questions to be determined. SECTION 1. When certiorari granted. — An order [Section 2095 is omitted, as manner of service is may be granted by the Supreme Court requiring an provided for in Article II.] SECTION 2. Application, how opposed. The application for the order may be opposed by a return of the proceedings had, certified by the court or judge to whom the motion papers are directed, and by affidavits and papers, as upon a motion, and all legal objections may be taken upon such hearing. No motion to quash the proceedings is necessary or proper. (Sections 2096 and 2097.) inferior tribunal to make return of its proceedings for the purpose of review in one of the following cases only: 1. Where the right to such review is now, or shall hereafter be, given by statute. 2.Where such review could be had at common law and has not been taken away by statute. [Section 2121 is rendered unnecessary by the pro [Punishment for failure, etc., under general pro- visions of section 2, which expressly limits cases in visions, Art. I.] SECTION 3. Order, when granted and effect. Where no question of fact arises, the court may grant or refuse the order. Where the party in interest appears to oppose the application, notice of sub which a certiorari can be granted. It would be difficult, if not dangerous, to attempt to regulate the specific cases in which the writ can issue. The wiser course seems to leave this section as it now stands.] SECTION 2. When certiorari will be granted.-An order of certiorari will not be granted: 1. To review a determination which does not finally decide the rights of the parties with reference to the matter to be reviewed. 2. Where an adequate remedy exists by appeal either to a court, or some other body, officer, board or tribunal. the order for review. (Sections 2132, 2133, 2134, 2135, 2136, 2139.) [This section very much simplifies the matter of return to the writ of certiorari, renders it much more convenient and fully as effective as the former provisions. There is no reason for making a writ of certiorari, or order for certiorari, returnable at the office of the clerk of the court. The object is to 3. Where provision is made by law for a rehear-procure the filing of a return which may be directed ing before the body, officer or tribunal making the determination, except from the decision upon such rehearing, or where the time within which a rehearing can be had has expired. (Section 2122 substantially as now.) SECTION 3. Limitation of time for review. —Notice of application for an order for such review must be served in the manner prescribed in Article I of this title within four months after the decision to be reviewed becomes final and binding upon the party seeking the review. (Section 2125.) [Section 2126 should not be continued. If such a determination had been properly made below by any body, board or tribunal having jurisdiction, four months would seem to be sufficient time in which relief could be had, and a provision granting twenty months, and that the General Term may act, is anomalous and would seem to have been introduced originally for some special purpose. Sections 2127 and 2128 provided for by Article I. Absence of notice prevents time running against the appeal. No injury can result from serving notice in all cases. to be done within that time, as in the proposed section, and, in case it is not done, proceedings may be had, as provided in Article I, as for a contempt. This will insure, more fully than the other, that the order granted shall be obeyed.] [Section 2137 becomes obsolete by reason of the provision that the real party in interest shall have notice in the first instance and be made a party to the proceeding.] SECTION 5. Hearing upon return.-The matter must be heard in the Supreme Court upon the re turn and papers upon which it was directed to be made, or upon the papers substituted for the return by order of the court in case of inability to procure a return. (Section 2138.) tions, involving the merits, to be determined by the SECTION 6. Questions to be determined. The questions, involving the merits, to be determined by the court upon the hearing, are the following, only: 1. Whether the body or officer had jurisdiction of the subject-matter of the determination under review. 2. Whether the authority conferred upon the body or officer, in relation to that subject-matter, Section 2129 becomes obsolete by the provision has been pursued in the mode required by law, in for order, in place of writ. order to authorize it, or him, to make the determination. Section 2130, as to mode of service, is provided for under Article I. This is also true of section 2131.] SECTION 4. Return on certiorari. -The inferior tribunal, directed to make return of its proceedings for review, shall certify a transcript of the record, or proceedings, and a statement of such other matters as may be required by the order, and file the same with the clerk of the county where the proceeding is pending, and serve a copy upon the plaintiff within twenty days after service of the order. The plaintiff shall pay the person required to make such return two dollars, and also ten cents additional for each folio of such return. The time to make such return may be extended in like manner as time to plead in an action. The court may, on notice, require a further, or amended, return. A return shall be made in case of expiration of term of office in same manner as if the party required to make it were still in office. In case of death, or disability, of party or person by whom return should be made, the court may make such direction as may be proper for bringing before the court the facts required by 3. Whether, in making the determination, any rule of law affecting the rights of the parties thereto, has been violated, to the prejudice of the relator. 4. Whether there was any competent proof of all the facts, necessary to be proved, in order to authorize the making of the determination. 5. If there was such proof, whether there was, upon all the evidence, such a preponderance of proof, against the existence of any of those facts, that the verdict of the jury, affirming the existence thereof, rendered in an action in the Supreme Court, triable by a jury, would be set aside by the court, as against the weight of evidence. (Section 2140 as in Code.) SECTION 7. Final order upon the hearing. The court, upon the hearing, may make a final order, annulling or confirming, wholly or partly, or modifying the determination reviewed as to any or all of the parties, and, in a proper case, may enforce restitution in like manner, and with like effect and subject to the same conditions as when a judgment is reversed upon appeal. (Sections 2141 and 2142). [Section 2143, as to costs, provided for in Article I. Sections 2144 and 2145 have no place here, as there should be a rule requiring that in all special proceedings a roll be made up similar to a judgmentroll in an action.] (2146 is embodied in Article 1.) SECTION 8. Limitation of article. Where a certiorari is given by statute and the method of procedure expressly authorized, this title shall not be construed to prescribe a different regulation, except to dispense with the issue of a writ, nor shall this title apply to a criminal proceeding other than a criminal contempt of court. (Sections 2147–2148.) This exception is necessary until such time as the special provisions can be made to conform to this title. In tax cases provision is made for certiorari to be heard at Special Term. Chap. 269, Laws 1880. SHOULD THE CODE OF PROCEDURE BE introduced, have been adopted verbatim in New Jersey, although that State has no Code of Procedure. The judicial experience of the courts and profession under these varied forms of statute, introducing the same substantial improvements, have much in common, and this fact ought not to be disregarded or overlooked in any State in which the improvement of administration of justice is, as it ought every where to be, the controlling consideration in revision. Revision, therefore, ought not to be undertaken for its own sake nor merely for the purpose of reducing the bulk of our statute, though that is a very desirable object. We should avail ourselves of the aid afforded by a co-ordination of the great princi ples of the original Code, in the light of its adoption more or less modified, in other States, and its practical working in this and other States, and in the REVISED, CONDENSED AND SIMPLI-light of the kindred measures such as the Massachu FIED? THE BY AUSTIN ABBOTT, NEW YORK CITY, THE New York Code is not an isolated statute, but it is the expression for New York of the general movement of the passing half century in favor of a more simple and direct procedure than the old systems. In consequence of its adoption similar expressions setts and Connecticut Practice acts in States that are not regarded as having adopted the Code practice. The great fundamental features of the new procedure should receive the first and broadest attention with a view of making the best possible system of those principles without departing unnecessarily from the form in which they have already been in the Code and Practice acts of twenty or thirty adopted throughout the greater part of the country. other States have given somewhat varying form to the same substantive legislation. The Legislatures of all these States may be re garded for the present purpose as so many experiment stations in legislation trying the new system with such modifications as divers views of expediency have suggested; and in all these States amendments have been made from time to time to promote the working of the system. In New York, such amendments have been carried out to an extent of addition and with minutia of detail (the result rather of individual personal views than of any general concensus of opinion), which have had the effect, very much, to impair the resemblance of the New York statute to what the original Code was, and to those which have been modeled upon it in other States. Making due allowance for the personal peculiarities thus introduced into the New York statute, it may be said that the Code and Practice Acts of all these States bear a family resemblance, and the chief fundamental principles of the new procedure are established by concurrence in substance and a degree of uniformity of expression in numerous States. To give a single illustration of this: Sections 539, 540, 541, which together form one of the cornerstones to the New York Code now and as originally Careful attention should be given to additions which have been made in a sufficient number of the States to demonstrate their importance. Such, for the pleading to be annexed or filed as a substitute instance, as the requiring exhibits mentioned in for special application for discovery, etc. (a feature which has been in some form adopted in twenty States); and such as the feature of many codes requiring sworn denials in order to put in issue the existence of a written instrument pleaded, even though the complaint be not sworn to (a principle of which has been adopted to some extent in thirty one States). Other features, the usefulness of which has been tested by the experience of a number of States, should also be considered. The great fundamental principles of the new procedure having been thus surveyed, the revision and pruning of details in our own statute could proceed wisely with much greater condensation than otherwise would be safe, and the result, I believe, would be far more beneficial to the practitioner and to the courts than any method of dealing with the subject as if it were simply a matter of legal legislation without that light from general experience which will demonstrate the usefulness and importance of those parts of our statute which are fundamental, and will aid in determining wisely upon the revision or repeal of numerous detailed regulations which have been fastened upon our Code by a nar- right to practice in Federal courts not being affected row view of the new procedure. Such a revision would bring our statute up to the best methods of procedure extant, would make it a new model to be followed by legislation in other States, as it was originally, and would afford the best possible basis for the proposed Code of Federal Procedure. Since writing the above, I have examined in some detail an admirable collection of "Code References," which forms a sort of harmony of the Codes of Procedure, prepared by Edwin E. Bryant, Dean of the Law Faculty of the University of Wisconsin, and contained in his volume in the students' series entitled " Bryant's Code Pleading," just published by Little, Brown & Co. This table will suggest how much light the experience of other States can throw in any intelligent effort to recast our own Code. Abstracts of Recent Decisions. FEDERAL COURTS.—The fact that a judgment in the State court in an action involving a contest between mining claims is res judicata of the questions litigated in an action removed to the Federal Court does not deprive such court of jurisdiction, as a contest between mining claims necessarily involves a consideration of the laws of the United States as to the location and to the effect of end lines and side lines on the rights to the mineral veins and lodes, and as the evidence whereby these things are proved, whether direct or through estoppel by some act of the party, or by a judgment of a court, does not remove consideration of the laws as elements of decision. (Consolidated Wyoming Coal Min. Co. v. Champion Min. Co.. U. S. C. C. [Wyo.], 62 Fed. Rep. 945.) DEFECTIVE SIDE MUNICIPAL CORPORATION WALKS.—In an action for injuries caused by a defective sidewalk, evidence of the general condition of sidewalks in the vicinity of the accident is admissible to show notice. (City of Belton v. Turner [Tex.], 27 S. Rep. 831.) EMINENT DOMAIN.-Under the general railroad law, an application to condemn the lands of a corporation chartered for the purpose of facilitating transportation will be deemed an application to condemn such lands for the purpose of crossing only, unless it avers that the lands are not necessary for the purposes of the franchises of the present owner. (State v. National Docks & N. J. Junction Connecting R. Co. [N. J.], 30 Atl. Rep. 183.) thereby, though the disbarment was for statements in a Federal courts. (Green v. Elbert, U. S. Cir. Ct. of App., 63 Fed. Rep. 308.) INSURANCE-POLICY.-In an action on a second fire insurance policy, issued by defendant on the same property, the answer alleged that such policy was intended as a renewal of the first policy, which had been paid; and that the risk of a second insurance for $1,000, for which the action was brought, was never in fact taken or assumed by defendant. Held, that such answer did not constitute a counterclaim which would be taken as true in the absence of a denial. (Walker v. American Cent. Ins. Co. [N. Y. ], 38 N. E. Rep. 106.) RAILROAD COMPANIES-ACCIDENT AT CROSSINGNEGLIGENCE. A railroad company is bound, independently of statute, to take reasonable and proper means of notifying the public of the approach of its trains to a public crossing after night; and it is a breach of this duty to back a train of flat cars over a crossing in the suburbs of a city, without having on it any brakeman, or any light or other signal of its approach. (Chicago, R. I. & P. Ry. Co. v. Sharp, U. S. C. C. of App., 63 Fed. Rep. 532.) RELIGIOUS SOCIETIES--EVANGELICAL ASSOCIATION. -The laws of an ecclesiastical body will be recognized and enforced by the civil courts if not in conflict with the Constitution or the laws of the State. (Krecker v. Shirey [Pa.], 30 Atl. Rep. 440.) SEDUCTION OF WIFE-ELEMENTS OF DAMAGE.-In an action for seduction of a wife, a charge that there is no fixed rule for determining plaintiff's compensation, but that the jury must consider the social relations of the parties, the apparent affection of the husband and wife, the actual misconduct of defendant, the pecuniary situation of the parties, and the mental sufferings of the plaintiff, is proper. (Mathies v. Mazet [Pa.], 30 Atl. Rep. 434.) WILLS-EXECUTION.--The validity of the execution of a will is determined by the law in force at testator's death. (Langley v. Langley [R. I.], 30 Atl. Rep. 465.) WITNESS-CREDIBILITY— INSTRUCTIONS.-Where a witness' testimony on several trials was conflicting, and he, being confronted with portions of his testimony in the former trials, stated that part of such former testimony was untrue, and that he could not remember as to the rest, it is invading the province of the jury to charge that it is their duty to reconcile the testimony, if possible; that the law does not presume a witness testifies falsely; and that it is better to assume that a witness has made a mistake rather than that he has lied. (Isely v. Illinois Cent. R. Co. [Wis.], 60 N. W. Rep. 794.) |