The sun. [volume] (New York [N.Y.]) 1833-1916, 1915-09-19
IN NEW CONSTITUTION MEANS
10 END LAWS VEXATIOUS DELAYS

clal controversy.
One Of the chief merits OF this
change lies in the fact that the re-
sponsibility for the administration or
justice will be placed upon the courts,
where 1t belongs. and will not continue
In the Legislature. where II does not
belong. Under the present method OF
regulating procedure by liked statu-
tory rules the courts are held to ac-
countability for the administration Of
Justice and vet are unable to control
the performance of the duty vested
in them.
The change from statutory rules to
court rules will release the bonds by
which justice has been tied. but at
the same time IL will not be comforting
upon the courts any new or extraor-
binary power. Under the common
law system the courts provided the
rules for their own procedure n
indeed under the present system this
power is exercised to a limited en-
tent. In most OF the decisions de-
examinations of substantive rights are
involved. While our state govern
ment is divided into three branches.
NilV AhN l'b "iib wv
judicial. the two latter with respect to
procedure lap over. the Legislature as
well as the Judiciary having power
to regulate the procedure.
Both the Legislature and the courts
under the present Constitution have
the power TO establish the procedure
IN the urt and what is accom-
plished by the new section in the
judiciary article relating to the civil
practice Is to vest in the courts the
power to make their own rules. sub
ject to the right of the Legislature at
intervals Of five years to direct
changes to he made in them.
This provision was inserted 20 give
stability TO the court rules and stiil
not deprive the Legislature OF the
which il has exercised since
the formation Of the government to
control the administration of justice
by establishing the rules OF proce-
dure.
The report OF the Board OF Statu-
tory Consolidation referred to In the
judiciary article which was before the
convention is not n mere reclassifica-
ton n redistribution of the pro-
visions OF the Cod of Civil Proce-
dure, but IL an actual revision n
simplifcation OF the practice OF the
courts Of general Jurisdiction made in
the light OF an examination of the
practice IN other jurisdictions.
The new practice has beer based
primarily upon the existing practice.
but II has been greatly simplified, so
49,. ---l kA.4N- a. 49,
the change from statutory rules TO
court rules for fear OF being COM
PEELED to ~acQuaint himself with a new
system OF practice.
, It is impossible within the limits
OF this article to review the changes
that have been made. II may be said
that there Is not a branch Of the pro-
cedure hat has not been condensed
INC simplifed.
For instance. the distinction be-
tween special proceedings and actions
under the code has been abolished and
under the new practice every appli-
cation for relief. except an intermedi-
ate application, Is required to be COM
menced by summons or by summons
and complaint.
There is, therefore, under the new
practice but one form OF action for all
name OF relief. except so far as
those are special proceedings in the
consolidated laws, whether they are
denominated legal or equitable, or
whether required to he brought by
summons or by notice.
Another idea that dominates the
new practice is to endeavor. so far as
possible. TO provide for one trial Of
the facts by reserving questions Of
law. r submitting the facts in such
a way Ia to obv!ate a second trial Of
the same facts.
The evil OF r~etrials of facts IL sought
I o be avoided. and the provision
for disregardins mistakes, IRREGULAR
ties and defects on appeal a been
preserved and strengthened.
Tho widest latitude has beer pro-
vided for disposing OF sham defences
and for the joinder Of parties and
causes of action and for more specific
pleading and for obtaining promptly
the facts necessary for trial and de-
termining all preliminary questions
so far as practicable. A new rule has
been provided whereby commercial
cases may receive special treatment
and provision has been made for the
construction OF a statute municipal
ordinance or written instrument upon
notice TO the parties interested.
The provisions for substituted SER
vice. relating to provisional remedies,
examinations before trial and sup
Elementary proceedings have all been
clarified and simplified, &c that the
practitioner will not be met at every
turn with obstacles and pitfalls which
may result in a miscarriage OF JUS
tice.
me OF the most radical provisions
Is that which provides for the volun-
tary submission of IA controversy to
a trial court or judge with or without
pleadinRs and without regard to tech
meal rules of evidence and procedure.
Under this provision merchants and
others having a difference concern
ing the construction OF a contract or
other matter may without the m
ployment of counsel go before a court
in an informal and submit
the matter for adjudication. This
rule is In line with the practice of
submitting matters to arbitration
through the medium OF boards OF
trade and chambers of commerce, ex-
cept that It substitutes the court for
the informal body provided by these
boards and chambers.
There are many other features OF
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