forming the undertakings which the Court had forced upon us as a substitute for the property on which our levy was made. Then, there being no precedents, I struck out on a new path and had the man adjudged guilty of contempt of Court for disposing of those assets, arguing that it was a contempt because, by fraudulently disposing of his assets, he was making futile and nugatory not only the undertaking but also the solemn order and proceeding of the Court itself. The City Court pronounced this a contempt, fined him the amount of his bond and the amount of my bill to my client for my attentions to the individual (64 Misc., 611). The impoverished debtor then added to his array of counsel a third member in the person of one of the most distinguished lawyers in the whole country, who conducted an appeal upon high grounds only. His position was in substance: "I do not question that the findings of fact are correct; I do not palliate the offense found; but unless the Court legislates it cannot pronounce that offense a contempt of Court." The Appellate Term, by a vote of two to one, said that the offense, though undoubtedly committed, was no contempt (67 Misc., 90). Judge Scott, writing for the Appellate Division, said most regretfully, they were unable to pronounce that offense a contempt (138 App. Div., 213). That Court then certified the facts to the Court of Appeals, which Court affirmed without opinion. For the exact question certified, see 199 N. Y., 558.

Now the point I want to urge upon the members of the Bar is that that decision of the highest Court is a very serious thing. Bear in mind, if you please, that our Courts have power to release by mere order any notice of pendency of action filed against any property howsoever valuable, any attachment against property of any amount,

any levy on property of any value upon the substitution of an undertaking unsecured by nothing whatsoever save only a promise and a representation of then present ability to perform. Yet the Courts say that while they have the power to say to the man whom they deprive of the benefits of such notice of pendency, or attachment, or levy, “ You let go or we will exercise our power of punishment upon you if you disobey, but you must understand that we have no power to punish the person who guarantees the substitute if he deliberately and purposely renders that guarantee worthless." Now, that is all wrong. I am not arguing for imprisonment for debt. Far from it, but the findings of this Court certified by the Appellate Division to the Court of Appeals were that the surety had deliberately and purposely divested himself of his property for the purpose of making it impossible for him to comply with his undertaking to the Court itself.

As soon as the Court of Appeals reached its conclusion, I drew a bill and had it introduced in the Legislature. It secured the warm written approval of Mr. Justice Ingraham of this department, with permission to use the same. I also wrote Mr. Chief Justice Cullen about it, who replied that it was his practice not to write letters on any matters of pending legislation. That bill was passed by the Assembly and in the last few days of the session was favorably reported by the judiciary committee of the Senate, but in the pressure of other bills it failed to be called for a vote and so died. We now have a new session and I shall have recourse to my old bill and if you gentlemen feel that it is a serious thing that the Court should be allowed to vacate a notice of lis pendens and attachment and levy and to order as the only protection an unsecured undertaking, then I hope that you will write

your legislators to support the proposition that the Court should have the power to punish, as an affronter of its dignity, honor and authority, any person who purposely disables himself from performing his part of an agreement bargain with the Court itself.

The President:

The paper on Special Actions and Special Proceedings, by Mr. Fiero.

J. Newton Fiero, of Albany, read his paper as follows:

REVISION OF THE CODE RELATIVE TO SPECIAL ACTIONS AND SPECIAL PROCEEDINGS

The shortcomings of the Code and its sins of omission. and commission in respect to the subject-matter in hand have been so frequently discussed by the writer that we shall be more than justified in assuming as to special actions and proceedings, the view of the Committee of Fifteen appointed by Governor Odell under chapter 594, Laws of 1902, in its report to the Legislature relative to the Code. as a whole. The Committee said, among other things:

"A very decided objection to the code is that it is too diffuse and minute, that it undertakes to provide for all possible cases leaving nothing to the discretion. of the court, resulting in inconvenience and injustice, and that from this fact has developed a hard and fast system of practice which is in no wise beneficial to either the bench or the bar, and occasions annoyance, inconvenience and delay, by reason of numerous and often conflicting decisions, upon unimportant questions."

"There is an iteration and reiteration of similar but yet unlike provisions, and of comparatively trivial

details in slightly varying forms and different phrases, which should be clearly and concisely stated once for all so as to embrace every matter to which they are pertinent."

This clearly is not a criticism of the practice under the present procedure as a whole, but relates to the well-known lack of care and experience on the part of the draftsman under the revision of 1877-1880. The desirability for simplification being thus beyond question only the scope and method of amendment and revision need be considered.

The first question for determination is, What are the important matters requiring attention and how can they be remedied, viewing the matters from a purely theoretical standpoint?

The second question is, What can be accomplished practically by way of improvement of present conditions?

To arrive at a satisfactory conclusion both as to what is desirable and as to what can be accomplished it is quite necessary to inquire as to the manner in which the present Code provisions relating to special actions and proceedings came to be adopted, and what has been done since their enactment in the way of amendment.

It is a matter of common knowledge, among the older members of the Bar, that after the enactment of the original Field Code, covering the practice in the civil action, its author prepared "An Act to Establish a Code of Civil Procedure," which was presented to the Legislature in 1853 and is printed in full in the Assembly Documents of that year. The proposed Code consisted of 1,740 sections and was divided into four parts. The first related to the Court of Justice, the second to civil actions, the third to special proceedings of a civil nature, and the fourth to evidence. It comprised not only the matter contained in

the original Code, but covers substantially the topics now known as special actions under the name of "Actions in Particular Cases," viz., ejectment, foreclosure, waste, nuisance, partition, actions respecting corporations, actions by and against executors, actions against public officers and actions in the nature of quo warranto. All of this is contained in sections 879 to 1054. The part treating of special proceedings is contained in sections 1252 to 1640 and covers State writs, summary proceedings, the enforcement of liens, punishment of contempts, voluntary dissolution of corporations, arbitrations, insolvency and other minor proceedings.

It is needless to say that the proposed act was clear, concise and comprehensive; in fact, a model of draftmanship and adaptability to the purpose sought to be attained. This act failed of passage and the matter of revision was taken up some twenty years later by the late lamented Montgomery Throop, and for the first time the provisions as to special actions and special proceedings were brought together in that part of the Code enacted to take effect September 1, 1880, beginning with Chapter XIV, and consisting of sections 1491 to 2471, nearly one thousand sections, as against 563 of the Field revision relating to these subjects.

In the original draft of the plan of this Code, said to be in the handwriting of the Chairman of that Commission, which is now in my possession, there appears "Chapter Fifteenth" entitled "Regulations affecting particular rights of actions and modes of proceeding in particular actions." The name "Special Actions" does not appear in either the Field or Throop draft nor are they so designated in the present Code, although Chapter XIV, as it is enacted, is entitled "Special provisions regulating actions relating to