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The Code Cause of Action, 33 Yale Law Journal 817 (1924)


In working out the details of the great pleading reform of 1848, the New York "Commissioners on Practice and Pleadings" attempted to employ a technique based upon two utterly inconsistent principles. The failure of the courts which have had to interpret the Code to recognize this inconsistency has been one of the prime causes of the difficulty experienced in carrying out the pleading reforms intended by the codifiers. On the one hand the codifiers intended to ameliorate the harshness and inelasticity of the common law system of pleading by the adoption of equitable principles. On the other hand they desired to make an inelastic code-a statute-so that judge or lawyer might read and see at a glance what the procedural rule was. One was a principle looking toward convenience in trial work--ease and efficiency in doing court business; the other was a principle of rigidity, and, as apparently it was hoped and expected, of clarity and definiteness. The result of attempting to serve both these incongruous ideals at the same time is well shown in the matter of joinder of parties. The Commissioners say that they intend to adopt the equity principle: "The courts of law generally administer justice between those parties only who stand in the same relation to achn (each ?) other; while courts of equity bring before them various parties, standing in different relations, that the whole controversy may be settled, if possible, in one suit, and others avoided. This reasonable and just rule, we would adopt for all actions. It is for the interest neither of the suitor nor of the state, that there should be several suits to settle one controversy, so long as one will do it as well."

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The Code Cause of Action, 33 Yale Law Journal 817 (1924)

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