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Real Property Law
PREFACE The present official edition of the “ Consolidated Laws” was authorized by chapter four hundred and fifty-eight of the laws of nineteen hundred and nine, which provides that “the board of statutory consolidation in conjunction with the persons employed under section twenty-four of the legislative law, in drafting, examining and revising bills, shall at the close of the legislative session in nineteen hundred and nine, prepare an official edition of the consolidated laws, not including the amendments to the code of civil procedure and code of criminal procedure, passed at the present session of the legislature, which edition shall be certified by the secretary of state or the chairman of the board of statutory consolidation to be a correct transcript of the text of the original laws, and when so certified a copy of a law contained therein may be read in evidence. Such edition shall contain the amendments made to the consolidated laws since their enactment inserted in their proper place in the consolidated laws and the index of the consolidated laws prepared pursuant to law by a person or persons designated by the commissioner of education, and in a separate volume the consolidated schedule of repeals and the historical record of statutes prepared by said board."
These statutes being a consolidation of all of the general substantive statutes of the state since its organization and repealing all the general substantive statutes of the state during the same period, except as embraced in the text of the “ Consolidated Laws, thus wiping out all previous revisions and consolidations of the statutes and forming a basis for a new starting point in general substantive legislation, it seems appropriate to review the history of prior revisions and consolidations of the statutes and to make a brief record of the efforts of the state to codify and arrange its statutory law.
JONES AND VARIOK REVISION OF 1789 The necessity for a revision of the statutes of the state soon made itself felt after the adoption of the first state constitution which provided that “such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this state, subject to such alterations and provisions as the legislature of this state shall, from time to time, make concerning the same.” (State Constitution, 1777, Art. 35.) It vested the supreme legislative power in two separate and distinct bodies of men and established a council composed of the governor, the chancellor and the judges of the supreme court, or any two of them, together with the governor, “ to revise all bills about to be passed into laws by the legislature,” with the same powers over legislation substantially as that now possessed by the governor of the state. (State Constitution, 1777, Arts. 2, 3.)
With this machinery for the passage of the statutes to govern the people of the new state and parts of the common law and statute law of England and Great Britain and acts of the legislature of the colony of New York operative, it soon became necessary to collate and revise the laws. In response to this necessity the first revision of the laws of the state was undertaken pursuant to an act passed April fifteenth, seventeen hundred and eighty-six. (L. 1786, ch. 35.)
With a preamble reciting that, “Whereas by the state Constitution it is declared that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the Legislature of the Colony of New York, as together did form the law of said colony on the nineteenth day of April, in the year of our Lord one thousand seven hundred and seventy-five (except such parts thereof as are by the said constitution abrogated), shall be and continue the law of this state; subject to such alterations and provisions as the legislature of this State shall from time to time make concerning the same; and whereas such of the said statutes as have been generally supposed to extend to the late Colony and to this State are contained in a great number of volumes, and those statutes as well as the acts of the legislature of the late Colony are conceived in a stile and language improper to appear in the statute books of this State,” the act appoints Samuel Jones and Richard Varick to collect and reduce into proper form, under certain heads or titles of bills, all of the said statutes and to lay the same before the legislature, so that such of the bills as may be approved by the legislature may be enacted into laws of the state to the intent that thenceforth none of the statutes of England or Great Britain should be considered laws of this state.
The work of the revisers, completed in seventeen hundred and eighty-eight, and known as the Jones and Varick Revision, is merely a collection of the statutes then in force in the state with a reference to statutes expired or repealed.
In their preface to the printed revision the revisers say: “There is reason to believe, the Legislature supposed, when this work was undertaken, that it would contain the whole statute law
of the state: But in the course of the revision, they found that several of the public acts of the late Colony, could not, with any degree of propriety, be re-enacted or repealed. These acts still continue to form part of the law of the state. There are others, of general concern, which, although repealed, or become obsoleté by new provisions, must give the rule relative to things before done, under or according to their direction."
The title page, in part, is as follows: “ Laws of the State of New York, Comprising the Constitution, and the Acts of the Legislature since the Revolution, from the First to the Twelfth Session, inclusive. Published according to an Act of the Legislature, passed the 15th April, 1786." The imprint is: “ New York: Printed by Hugh Gaine, at his Printing Office and Book Store, at the Bible, in Hanover Square, 1789.”
KENT AND RADCLIFF REVISION OF 1801 Following the Jones and Varick revision of 1789 Thomas Greenleaf entered upon the field of publishing the laws of the state as a private venture and published an edition of the laws in three volumes, including the years from seventeen hundred and seventyseven to seventeen hundred and ninety-seven inclusive, which carried the compilation of the laws down to a period eight years later than the edition of Jones and Varick. The last publication of this edition was in seventeen hundred and ninety-eight.
From the Jones and Varick revision in seventeen hundred and eighty-seven to the close of the session of the legislature in eighteen hundred, eight hundred and eightyeight general laws had been placed on the statute books of the state, and in the last-mentioned year, by the act of March twenty-eighth, eighteen hundred (L. 1800, ch. 70), another revision was authorized.
Under that act James Kent and Jacob Radcliff, at a compensation of one thousand dollars each, were appointed “ to collect and reduce into proper form,” within a period of two years, “under certain titles of acts all the public acts of the legislature of this state now in force and which may be in force during the time by this act allowed for the completion of the business hereby author ized to be performed."
Under date of February third, eighteen hundred and one, about a year after this appointment, the revisers presented their first communication to the senate:
“In execution of the trust committed to us by an act of the last session, we have now the honor to present to the legislature a number of revised laws.
We shall diligently prepare and present others, and from the progress already made, we indulge the expectation, that in the course of a month, the revision of the laws, on our part, will be completed.
In order to carry the intent of our appointment into full effect, we have made great alterations in the arrangement, and in the language of many of our statutes. Our object has been to bring into one act everything relating to one subject, and to amend the style, especially of the more ancient statutes, by giving them greater brevity, perspicuity and simplicity.
How far we have been able to attain these desirable ends is respectfully submitted to the Legislature. We have constantly noted in the margin the reference to the act and section revised, and in many instances it will be found, that only part of a section is incorporated into one bill, and some time niay elapse before another bill, embracing the residue of the section, may come under consideration. We are persuaded, however, that in the result, nothing will be found to have been omitted.
Under the authority 'to present in writing any contradictions, omissions or imperfections, which may appear to us in the acts to be revised,' we have frequently, in the margin of the bills, suggested such imperfections, and have sometimes, to convey our ideas the more correctly, incorporated the amendment into the bill; but in all such cases the reason of the alteration is stated in the margin.” (Senate Journal 1800–01, pp. 21, 22.)
Four bills accompanied this communication of February third, eighteen hundred and one, other bills following from day to day, and on March eleventh, eighteen hundred and one, the revisers reported to the senate:
“We present a number of revised bills, which complete the revision of the statute law. We flatter ourselves that no public act which has at any time been amended or altered, and which could with propriety have been revised by us, has been omitted.
We also present a list of public acts in force, and not revised. They continue in their original state, unaffected by any subsequent provision, and are therefore considered as not within the extent of the trust committed to us. At the same time we take the liberty to suggest, that several of them, in our opinion, merit legislative interference. Those to which we particularly allude are mentioned in a schedule annexed, and accompanied in each case with a few remarks, intended merely to invite attention to the principal defects which have occurred.
We also submit a list of acts deemed private or obsolete; the former, we apprehend, ought not at all to appear in the statute book, or if they do appear, they ought, with those that are public and obsolete, to be printed by their titles only.