Recommendations as to Judicial Procedure they had been found upon the record in accordance with the common law prac tice, which is preserved by sections 1187 and 1188 of the Code, the questions of law arising upon the merits could have been disposed of by the Appellate Divi sion upon the first appeal, and final judgment rendered. This would have been a benefit to the plaintiff, who died before the final judgment in his favor was recorded. It would really have been a benefit to the defendants. The procedure adopted put them to great and unnecessary expense. Let me illustrate further by a quota tion from an opinion of Judge Martin, delivering the judgment of the Court of Appeals• :— After carefully and studiously examining the great number of perplexing and difficult questions determined during the heat and excitement of a sharp and protracted trial, we can but admire and commend the scru pulous and intelligent care and ability evinced by the trial judge, and the almost unerring correctness of his rulings. When the number and variety of the questions raised are considered, we are sur prised, not that a single error was committed, but that there were not many more. In other words, our procedure is such that it is impossible, even with a judge of "almost unerring correctness," to get a verdict on the first trial of an intricate cause that will stand the test of an appeal. It needs no argu ment to show that such procedure needs revision. In opposition to all the rules of tech nicality, which work such injustice and cause such delay, I urge that laid down by Chief Justice Marshall in Church v. Hubbart, 2 Cranch 232: "It is desirable to terminate every cause upon its real merits if those merits are fairly before the Court, and to put an end to litiga•Uwis
Long Island R. R., 162 N. Y. 52, 67.
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tion where it is in the power of the Court to do so." In dealing with this important subject I ask you to put yourselves in the attitude of a lawyer who has a righteous cause, and who naturally desires to bring it to trial and obtain final judg ment for his client as soon as possible. Is not this the attitude you always want to occupy? Doubtless we are some times called upon to defend a client who has no defense upon the merits. What the lawyer's duty in such a case may be I do not stop to consider. But one thing is clear. As long as the law gives him a right to interpose a tech nical defense and prolong the litigation in the hope of wearing out his adver sary, the lawyer is blamed by many if he does not exert his skill to the utter most for that purpose. After all, when we look at our profession from the standpoint of the Commonwealth; when we remember that we are not only attorneys for a client, but officers of the court, and charged with an important part in the administration of justice, we must admit that we occupy a humili ating position whenever we undertake to defeat it. It may be a lawyer's duty to occupy this position under the ex isting system. All the more, therefore, is it our duty as citizens to endeavor to reform the system, so that these means of procrastination shall no longer be available. We hear sometimes that such compli cated and technical rules as those which now prevail benefit the profession by increasing the counsel fee. You are all too rngh-minded to be influenced by this consideration, but if any of your friends should bring it forward when this subject is under discussion, let me assure you that my experience for more than forty years in the trial of causes con vinces me that the assumption is errone
