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of the general electorate of the state, and it realizes that the general electorate of the state does not always vote upon a constitutional amendment in the same numbers and with the same interest with which they vote for a particular individual as a candidate for an official carrying a salary.

It is hard to get the voters of the state to attend public meetings at which dry, legal, procedural reforms would be presented for discussion. Yet if they can be aroused and made to realize that their pockets will be profited and their property rights better safeguarded, their litigation expedited, their disputes more effectually and reasonably adjusted, a constitutional reform, even to the extent suggested in the draft Judiciary Article in Part I of this report, can be effected, or in the language of the man in the street, it "can be put across."

In the second place, a legislature is hard to deal with in the matter of procedural reform. The man who has made the profession of law a career and is unwilling to turn aside to the right hand or to the left, rarely runs for the state legislature. There are from time to time great lawyers in local legislatures, and the record of our public life is full of the public service rendered in Congress and in state legislatures by distinguished lawyers. And the legislature of the state of New York has given, by able men, the most careful study and unselfish and untiring labor to this general subject, as evidenced by the enormous record of the work of the Rodenbeck Board, and of Senator Walters' Joint Legislative Committee, and the bar of the state is under a great debt of gratitude to these men. But it must be remembered that these men are doing this on the side, and that it is not their chief and main duty or purpose. They have countless other claims upon their time and attention, and it is a marvel that their work is so little open to criticism in view of all these conditions. The four blue volumes which the board published in 1915 do not begin to represent the total labor of this board and of the Joint Legislative Committee that has been dealing with its work.

We are reminded by the nature of the labors of the latter committee of the experience of Theophilus Thistle, the successful thistlesifter, who in "sifting a sieveful of unsifted thistles, sifted three thousand thistles through the thick of his thumb." The writer of this report was privileged by the Hon. J. Henry Walters, chairman of that legislative committee, to examine the detail of the work which

they had so carefully done. They had taken the more than three thousand thistles of code sections and sifted them, sentence by sentence. Each section was pasted upon a separate manila sheet about two feet square, each sentence in each section was sifted separately and a note made of whether as an adjectival provision it was covered by some general provision of the Short Practice Act, or relegated to the general domain to be covered by rules of court, or, if it was a provision of substantive law, then note was made of the fact that it was preserved and relegated to one of the consolidated laws, e.g., Real Property Law, Domestic Relations Law, Public Officers Law, Judiciary Law, Personal Property Law, etc., or whether it would be repealed. It is obvious that such a task was colossal, and the report of the committee made to the legislature of the state on April 23, 1917, must receive very careful study.

We gather from the report as a whole that the committee does not give unqualified support to the report of the Board of Statutory Consolidation and that it has acquired additional material on the basis of which it, or a similar committee or agency, may be authorized to "prepare and submit a plan of simplification and proposed legislative bills therefor." But we remain unalterably of the opinion that constitutional amendments must accompany such a plan.

We proffer the Judiciary Article in Part One with due acknowledgement to the Group for the Study of Professional Problems and to the original Committee of Seven of this Club, as a starting point, for such a change.

We commend the Short Practice Act of the Committee on the Supreme Court of the New York County Lawyers' Association if boiled down into more generic conciseness, as a starting point for a legislative enactment."

But in regard to the rules of court we believe that there must be a transition period during which, after the unification of the court and the operation of the Short Practice Act the existing rules, so far as not inconsistent with the change, shall continue in operation until the committee appointed by the Board of Organization and Control, including members of the bar, may have formulated appropriate rules.

If the regulation is to be left to the court, the court and not the
See copy thereof, subjoined as Exhibit A.

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. 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,

3.

"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.

9. 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.

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