city and another to the Second Department, always the number of members of the court, but that the sitting at Brooklyn, and would provide for sending court should be enlarged so as to enable it to discauses for argument from New York city to Brook- pose of the business. They urge: First, that a lyn and vice versa, or that sessions of the General limitation of appeals by reason of amount involved, Term in the Second Department should be held in is unreasonable and illogical, as it does not bear New York city as occasion might require, so that upon the importance of the questions of law to be there should be two General Terms for the purpose determined; second, that the remedy by preventing of transacting the business of these two cities and appeals from orders would work injustice to suitors of so much of the territory of the State as may be where the order involves the merits; third, that a embraced in the Second Department. This would limitation based upon the character of the cause is give a judicial force of ten judges for appellate busi- not capable of being made in fairness to litigants ness to take the place of seven Supreme Court judges and to the development and unity of the law; now designated, and of the General Terms of the fourth, that a limitation based on the unanimous Supreme Court and Common Pleas, leaving two agreement of the judges hearing the cause below, other General Terms for the balance of the State, is not proper or desirable, since the Court of Appeals arranging the remaining departments in any manner frequently reverses the trial court where it has been which might seem best calculated to accomplish the affirmed without dissent at General Term. purpose. This would give ten General Term judges to dispose of the business, where nine are now designated, but sitting in two courts instead of three as at present, thereby having much greater dignity and authority. Such a plan would contemplate the present General Term justices continuing as such until the expiration of their term and the election of a sufficient number of judges to complete the number and fill the positions made vacant by such

promotions.

Court of Appeals.

A proper provision for the increased business of the Court of Appeals has vexed the profession for a long period, and opinions differ widely as to the method to be adopted, although all agree that some steps should be taken for the relief of this tribunal.

While the work of the second division was most satisfactory, it is generally conceded that this device is undesirable as a permanent arrangement, more particularly in view of the fact that it disarranges the business of the Circuits and General Terms to such an extent as to be exceedingly inconvenient and troublesome, by withdrawing therefrom so large a proportion of the judicial force.

On the part of those who insist that the business of the court should be curtailed so as to enable the present number of judges to perform the duties devolving upon it, the argument is made: First, that this appellate tribunal should not be so large as to lose its character as a judicial body and diminish the feeling of responsibility; second, that permanency of membership tends to bring the court to a point where it will be good as the aggregate of the merits of all its members; third, that uniformity of decision is best secured by a limited number of judges, seven being the ideal number; fourth, that a single rather than a double tribunal is necessary to insure unity and certainty in the law.

Those who advocate an increase of the number of judges constituting the court, argue that the business should not be curtailed to meet a limitation of

Much force is to be given to the arguments on both sides and much to be conceded to the argument ex necessitate, since some action must be taken,

either by increasing the judicial force or limiting

appeals.

Bearing in mind that this association has strongly favored a considerable increase in the number of

judges, but yet deferring to the sentiment of a large number of members of the profession equally earnest in holding the contrary view, I beg leave to present as a fair compromise:

First. Prohibit appeals where the amount involved is less than one thousand dollars, including causes relating to real estate, where either the complaint or the proof shows the value of the property to be less than that sum. This suggestion would not involve great hardship, since in sums less than one thousand dollars, a litigation to the General Term is perhaps all that is in ordinary cases justifiable or necessary, and it increases the limitation by the sum of five hundred dollars only.

Second. Restrict appeals from orders, retaining substantially only appeals from final orders in special proceedings and interlocutory judgments. This prohibition would save substantially twelve motion days annually for the purpose of enabling the court to hear appeals from arguments.

Third. Increase the number of judges from seven to nine, thus enlarging the working capacity of the court by nearly thirty per cent without seriously affecting its unity or individual responsibility, and by allowing seven to act as now, enabling the court, by slight changes in its personnel from time to time, to sit a much larger portion of the year, and consequently dispose of a greater volume of business.

Fourth. Preserve the present or similar provision as to the second division for an emergency in case such should arise. This would meet any unforeseen contingency. A plan by which the court could be

These constitutional features supplemented by rules of the court, shortening the length of time allowed for argument, requiring assignment of the precise points of error in the notice of appeal, and exchange of points a number of days before argu-ble, and so far as practicable, absolutely necessary. ment, would go far to remedy the present difficul

ment of codification as such. It is purely experimental, and to be entered upon only as to topics now mainly reduced to statutes. Nor, on the other hand, is it an abandonment of codification, since it is an experiment by way of bringing together all the statutes on the subject, with such common-law rules as shall prove capable of being readily reduced to statutory form. It is not impracticable or impossible in such a case as this for "the reviser to gather together all the rules that can be found in the stat

of that committee on this subject now before the association. He says: "I think there are some branches of the common law which could be put into statutory form to advantage, although I do not think the general body of the common law can be codified without causing more uncertainty and litigation than the common law at present produces." The mere process of presenting the scattered and much-disputed rules of law in a more compact and definite form must of necessity compel a certain amount of alteration in and repeal of these rules toutes, reports, treatises or digests, separate the parconform them to modern requirements, and so far relieve the law from the condition described by one of the ablest members of the highest tribunal, who says: "There are many rules appertaining to the ownership of real property originating in the feudal ages, for the existence of which the reason does not now exist, or is not discernible, and yet, on that account, courts are not authorized to disregard them. They must remain until the Legislature abrogates or changes them, like statutes founded upon no reason, or upon reasons that have ceased to operate."

tial from the general, lay aside the obsolete, reconcile the contradictory, and avoiding repetition, arrange the results in fit order, and express them in perspicuous language." Such a piece of workmanship, giving the law on the subject, analyzed, condensed and clearly stated in scientific order, would be a boon to the profession, making a comprehensive statute, conforming to Lord Bacon's recommendation three centuries ago, that "the reports of England [then amounting to sixty volumes] should be purged and revised, whereby they may be reduced to fewer volumes and clearer resolutions." Such an expression in no wise detracts from the glory of the common law or from the benefits of comprehensive codification. It can be entered upon and completed in a brief space of time, without interference with the views of those holding to either belief, without committing them to its results or embarrassing them as to their future views or action. If it is a failure, it will sound the death knell of codification of the substantive law in New York for many decades. If successful, it will tend to solve the vexed problem, and be a step in the pro

A somewhat careful examination of the subject of domestic relations, to which I have heretofore referred in this connection, has further impressed upon me much confidence in this topic by way of experiment, embracing as it does the law of marriage and divorce, husband and wife, parent and child, guardian and ward and master and servant; it has been the subject of legislation to a greater extent than perhaps any other single topic. The Revised Statutes regulate the marriage contract and define its validity. The Code of Procedure, by an anomalous arrange-gress of law reform, which may be followed just so ment, while regulating the method of obtaining divorce in the courts, prescribes the grounds upon which it can be granted. The relations of husband and wife as to property rights have been the subject of numerous statutes from 1847 to 1894, and scarcely a vestige of the common-law rules remains. The old forms of guardianship by nurture and in socage have been abolished and new regulations instituted by statute. What is more convenient and promising than to gather all these statutes and a few commonlaw rules still in effect in a single chapter? The relation of master and servant, by reason of the growth and expansion of the topic, has so changed that it can no longer be regarded as one of the domestic relations except in name, and the result of judicial legislation on the subject might either be embodied in a single chapter or the entire topic left out of consideration, without affecting in any way the symmetry of such a proposed statute. This view does not, as some of the ardent supporters of the common law insist, in any way involve an indorse

far as, and no further than, it may be found desirable and expedient. To use the words of a learned writer who discussed this question a score of years ago: "If we could have the statutes and common law of the State, so far as it has been ascertained and declared by her courts upon any particular subject, collected and arranged with exactness in the form of a statute, and enacted as such by the Legislature, we should have the law on that subject posted up, as it were to that time, and should have a starting-point in our investigations upon which all would be agreed." We do not say the remedy is easy or certain, but it seems safe to say that something approximating it might be found feasible and the attempt is certainly desirable, thus steering clear of the objections to and difficulties of preparing and enacting a complete code of substantive law, and yet accomplishing many of the good results, for which a thorough and painstaking revision of the statutory and common law is deemed expedient and necessary.

tion.

IV.

REMEDIAL LAW.

The

arrangement lacking both scientific basis and practical convenience, and a style verbose, involved and The law of procedure was, in the common-law inaccurate. In framing a code it is said: "There courts, and more particularly in chancery, a matter are two opposite difficulties to be avoided; on the of rules and regulations engrafted upon custom and one hand the danger, by provisions too general, of usage. It constituted the chief difference between leaving a wide space for judicial discretion; on the law and equity when these branches were adminis- other, equal danger by going into minute details of tered by different tribunals, with differing powers making the practice inflexible and intricate, increasand sometimes conflicting authority and jurisdic-ing the risks of mischance and leaving unprovided for whatever particulars were unforeseen.” framers of the Code of 1877 fell into both these errors, but more particularly the latter. This Code was adopted against the earnest protest of the bar and only under the plea of necessity and pretext of early revision. Its friends admitted it was imperfect, but insisted it could be improved. It was deemed necessary because only a portion of the rules of procedure were covered by the Code then in existence, and most lawyers had already forgotten the report of the commissioners of 1853, which remedied this difficulty. The expectation of improvement has proved an "iridescent dream."

The law of procedure, sometimes called adjective law, to distinguish it from the substantive law, says Bentham, is "a means to an end; that end is or ought to be the execution of the commands issued, the fulfillment of the predictions delivered, and completion of the engagements taken by the substantive law;" or, in other words, the business of procedure is to enable the suitor through his counsel to present his cause to the court in the most concise and effective form, and obtain a determination as to its merits by the most direct and simple methods, following such determination by an execution of the decision in the most speedy and inexpensive manner.

"The Code is not comprehensive, which a code should be, and it is minute, which a code must not be." It attempts to provide for every case by an enumeration of particulars, while a code should provide for these things by a general description. Statutes, common-law rules and procedure are hopelessly and inextricably mixed, matters of substan

and common-law rules enacted among regulations of practice. To illustrate: Under chapter 15, which is defined as relating to "special provisions regulating other particular actions and rights of action and actions by or against particular parties" (note the clear, accurate and limpid style of this definition) are contained numerous provisions not only regulat

The Constitution of 1846, the judiciary article of 1847 and the Code of 1848 remedied a great and crying evil by uniting the common law and chancery courts and thus simplifying the administration of justice, but they did not complete the work. The first Code of Procedure was planned and sub-tive law having been transferred from the statutes mitted to the Legislature, and, in part only, adopted in 1848, and its four hundred and seventy-three sections furnished rules of practice for nearly twenty years. It covered the ordinary incidents of procedure, and upon the points as to which it regulated questions of practice was entirely satisfactory to the profession. It was clear, condensed and accurate and covered only the ground necessary to the prac-ing the practice, but giving rights of action. The tising lawyer. It is a most remarkable fact that but few lawyers are aware that this Code was supplemented in 1850, by the commissioners by whom it was originally drafted, by a report of a system of practice in four parts, consisting of one thousand eight hundred and eighty-four sections, followed by a more complete and revised work in 1853, containing one thousand eight hundred and forty sections, covering substantially the ground of the present Code, and, it must be conceded, in an infinitely better manner as to substance, style and arrangement. No action was ever taken upon these reports, and Under article 4 of title 5 of that chapter are proseveral years after, a commission appointed to revise visions for an action to recover damages for death the statutes of the State undertook, without due au- caused by negligence of another, a right of action thority or sufficient skill, the business of drafting a which did not exist at common law and which is new code, largely setting aside and ignoring the entirely statutory and has no place in a Code of work of the former commission and engrafting upon Procedure. This is followed by the enactment of a it matters foreign to the remedial law, adopting an | right not known to the common law-giving a woman

first title under this head relates to matrimonial actions. Under it are provisions taken from the statutes setting out the grounds for divorce and separation, in addition to the regulations as to the method in which such action should be carried on, which is the only province of a code.

Title 2, relative to corporations, not only regulates the method of carrying on actions against these bodies, but provides what constitutes a cause of action against corporations, a matter manifestly belonging to the statutes on that subject.