The New York Court of Appeals and Pleading

Abstract

Perhaps a single regret may accompany the passing of common law pleading :--that there also passed the "special pleader". This type of lawyer has always been reputed to possess great ability. At least he had a keen interest in and enthusiasm for the study of pleading. Now we are met with the seeming paradox that often the abler the lawyer, the less enthusiasm he has for pleading problems. An excellent example of this is to be found in the attitude of the New York Court of Appeals towards code pleading. That court has always ranked as one of the ablest tribunals in the country, and the reputation of its present personnel is justly as high as at any time in its history. Yet clearly the court has no consistent theory of the function of pleading in the modern judicial system. Its early hostility to the infant code is well known. Thereafter more liberal views intermittently prevailed. But in comparatively recent years there has been a retrogression to ancient technicalities, particularly in the attempted resurrection of distinctions between law and equity. Nevertheless, the passage in 1920 by the legislature of the Civil Practice Act and the attempt of the court to give effect to the more liberal provisions as to joinder of parties in that Act led again to a broadening of some of the pleading concepts held by the court, notably that of the cause of action. Now in its latest pronouncement there has again been a most violent reaction towards the past.